Citation Nr: 1015557
Decision Date: 04/28/10 Archive Date: 05/06/10
DOCKET NO. 99-11 196A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to a disability rating greater than 40
percent for L4-L5 and L5-S1 spondylosis with associated small
central herniated nucleus pulposus with degenerative disc
disease and lumbar myositis.
2. Entitlement to a compensable disability rating for otitis
externa and otomycosis.
3. Entitlement to service connection for hypertension.
4. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
psychophysiologic musculoskeletal disorder claimed as tension
headaches.
5. Entitlement to service connection for depression, on a
direct or secondary basis.
6. Entitlement to a total disability rating based upon
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. Mainelli, Counsel
INTRODUCTION
The Veteran had active service from November 1973 to November
1975, from March 1976 to November 1976, and again from June
1992 to March 1994. He also had periods of active duty for
training (ACDUTRA) and inactive duty for training
(INACDUTRA).
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from August 1998, February 1999, October
1999, and May 2000 decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) in San Juan, the
Commonwealth of Puerto Rico.
The Veteran disagreed with the February 1999 rating decision,
which granted service connection for a back disorder and
assigned a 20 percent disability rating, in April 2002. By
rating decision dated in February 2004, the RO increased the
Veteran's disability rating from 20 percent to 40 percent
with an effective date of February 20, 2002.
In September 2000, the Veteran requested an RO hearing. He
withdrew this hearing request in June 2001.
In October 2005, the Board granted an initial disability
rating of 40 percent for service-connected L4-L5 and L5-S1
spondylosis with associated small central herniated nucleus
pulposus with degenerative disc disease and lumbar myositis
for the time period prior to February 20, 2002. The Board
remanded the claim of whether new and material evidence has
been received to reopen a claim for entitlement to service
connection for psychophysiologic musculoskeletal disorder
claimed as tension headaches to the RO for further
evidentiary development.
In October 2005, the Board upheld the RO's denial of the
Veteran's remaining claims. The Veteran filed a timely
appeal to the U.S. Court of Appeals for Veterans Claims
(Court). In December 2006, the General Counsel for the
Department of Veterans Affairs (General Counsel) and the
Veteran's representative filed a motion to vacate the Board's
decision. The Court granted the motion that month, vacating
and remanding the case to the Board.
In April 2008, the Board remanded the case to the RO for
further evidentiary development.
The issues of entitlement to service connection for
hypertension and entitlement to TDIU are addressed in the
REMAND portion of the decision below and are REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
1. The Veteran's chronic orthopedic manifestations of
service-connected lumbar spine intervertebral disc syndrome
(IVDS) consist of severe limitation of motion absent
ankylosis.
2. The Veteran's chronic neurologic manifestations of
service-connected lumbar spine IVDS consist of right lower
radiculopathy absent significant sensory or motor deficits.
3. The Veteran's IVDS is not shown to be pronounced in
degree, the Veteran experiences more than intermittent relief
of symptoms of IVDS symptoms, and IVDS is not shown to
result in incapacitating episodes having a total duration of
at least 6 weeks in any given 12-month period.
4. The Veteran's otitis media is not shown to result in
frequent infectious episodes requiring prolonged treatment or
compensable hearing loss.
5. An unappealed April 1977 RO rating decision denied a
claim of entitlement to psychophysiological musculoskeletal
disorder, claimed as tension headaches, on the basis that
such disability was not incurred in or aggravated by service.
6. The evidence added to the record since the April 1977 RO
rating decision is not new and material as it contains no
non-cumulative evidence suggesting that the Veteran manifests
psychophysiological musculoskeletal disorder, claimed as
tension headaches, which was incurred in or aggravated by a
period of active service.
7. The Veteran's variously diagnosed psychiatric disorders
are not shown to be caused or aggravated during a period of
active service, a psychosis is not shown to have manifested
to a compensable degree within one year of a period of active
service, and the competent medical evidence establishes that
the Veteran's psychiatric disorder is not caused or
aggravated by service-connected disability.
CONCLUSIONS OF LAW
1. The criteria for a disability rating greater than 40
percent for L4-L5 and L5-S1 spondylosis with associated small
central herniated nucleus pulposus with degenerative disc
disease and lumbar myositis for the period of time beginning
February 20, 2002, have not been met. 38 U.S.C.A. §§ 1155,
5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.2,
4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5289-
5295 (2002); 38 C.F.R. § 4.71a DC 5243 (effective September
26, 2003).
2. The criteria for a compensable disability rating for
otitis externa and otomycosis are not met. 38 U.S.C.A.
§§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.85, 4.87a
(in effect prior to June 10, 1999); 38 C.F.R. §§ 3.321(b),
4.85, 4.86, 4.87 (in effect since June 10, 1999).
3. An April 1977 RO rating decision, which denied service
connection for psychophysiologic musculoskeletal disorder
claimed as tension headaches, is final. 38 U.S.C.A.
§ 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2009).
4. Evidence received since the April 1977 RO rating decision
is not new and material; the claim of service connection
psychophysiologic musculoskeletal disorder claimed as tension
headaches is not reopened. 38 U.S.C.A. § 5108 (West 2002);
38 C.F.R. § 3.156 (in effect prior to August 29, 2001).
5. The Veteran's depression and other diagnosed acquired
psychiatric disorders were not incurred or aggravated in
service, may not be presumed to have been so incurred or
aggravated, and are not proximately due to or the result of
service-connected disability. 38 U.S.C.A. §§ 101(24), 1110,
1111, 1112, 1131, 1137, 1153, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.307, 3.309, 3.310 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
One of the matters the Board must address is which issue or
issues are properly before it at this time. Under
38 U.S.C.A. § 7105(a), an appeal to the Board must be
initiated by a notice of disagreement (NOD) and completed by
a substantive appeal after a statement of the case (SOC) is
furnished to the claimant. In essence, the following
sequence is required: There must be a decision by the RO, the
claimant must express timely disagreement with the decision
(NOD), VA must respond by explaining the basis for the
decision to the claimant (SOC), and finally the claimant,
after receiving adequate notice of the basis of the decision,
must complete the process by stating his or her argument in a
timely-filed substantive appeal. See 38 C.F.R. §§ 20.200,
20.201, 20.202, and 20.203.
The issues on appeal include applications to reopen claims of
service connection for hypertension and a psychophysiologic
musculoskeletal disorder claimed as tension headaches. The
claim of service connection for hypertension was previously
denied by the Board in a November 1998 decision. The claim
of service connection for a psychophysiologic musculoskeletal
disorder claimed as tension headaches was finally denied by
an April 1977 RO rating decision.
As a general rule, once a claim has been disallowed, that
claim shall not thereafter be reopened and allowed based
solely upon the same factual basis. 38 U.S.C.A. § 5108;
38 C.F.R. § 3.156(a). However, if the claimant can
thereafter present new and material evidence, then the claim
shall be reopened and the former disposition of the claim
shall be reviewed. 38 U.S.C.A. § 5108.
An exception to the finality rule exists under 38 C.F.R.
§ 3.156(c). During the pendency of this appeal, the
provisions of 38 C.F.R. § 3.156(c) were amended, effective
October 6, 2006. See 71 Fed. Reg. 52,455-52,457 (Sept. 6,
2006) (codified at 38 C.F.R. § 3.156(c)). If a law or
regulation changes during the course of a claim or an appeal,
the version more favorable to the veteran will apply, to the
extent permitted by any stated effective date in the
amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-
2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003);
VAOPGCPREC 7-2003. This law did not explicitly limit
retroactive effect. Therefore, this provision applies to the
current claims on appeal.
The amended regulation of 38 C.F.R. § 3.156(c) provides as
follows:
(c) Service department records.
(1) Notwithstanding any other section in this
part, at any time after VA issues a decision on a
claim, if VA receives or associates with the
claims file relevant official service department
records that existed and had not been associated
with the claims file when VA first decided the
claim, VA will reconsider the claim,
notwithstanding paragraph (a) of this section.
Such records include, but are not limited to:
(i) Service records that are related to a
claimed in- service event, injury, or disease,
regardless of whether such records mention the
veteran by name, as long as the other requirements
of paragraph (c) of this section are met;
(ii) Additional service records forwarded by
the Department of Defense or the service
department to VA any time after VA's original
request for service records; and
(iii) Declassified records that could not
have been obtained because the records were
classified when VA decided the claim.
(2) Paragraph (c)(1) of this section does not
apply to records that VA could not have obtained
when it decided the claim because the records did
not exist when VA decided the claim, or because
the claimant failed to provide sufficient
information for VA to identify and obtain the
records from the respective service department,
the Joint Services Records Research Center, or
from any other official source.
(3) An award made based all or in part on the
records identified by paragraph (c)(1) of this
section is effective on the date entitlement arose
or the date VA received the previously decided
claim, whichever is later, or such other date as
may be authorized by the provisions of this part
applicable to the previously decided claim.
(4) A retroactive evaluation of disability
resulting from disease or injury subsequently
service connected on the basis of the new evidence
from the service department must be supported
adequately by medical evidence. Where such
records clearly support the assignment of a
specific rating over a part or the entire period
of time involved, a retroactive evaluation will be
assigned accordingly, except as it may be affected
by the filing date of the original claim.
In March 2000, the Veteran submitted an August 1996 Line of
Duty determination from the Puerto Rico National Guard
regarding his hospitalization for hypertension during an
ACDUTRA period. Thereafter, the RO received copies of
missing service treatment records (STRs) for the Veteran's
period of active service from June 1992 to March 1994, which
included a July 1992 entrance examination showing that the
Veteran entered this period of service with pre-existing
hypertension.
These service department records, which are clearly relevant
to the hypertension claim, existed at the time of the Board's
November 1998 decision but had not been associated with the
claims folder.
Therefore, pursuant to 38 C.F.R. § 3.156(c)(1), the Veteran
is entitled to have his hypertension claim reviewed on a de
novo basis. This claim is addressed in the remand following
this decision.
As indicated above, the claim of entitlement to service
connection for a psychophysiologic musculoskeletal disorder
claimed as tension headaches was finally denied in an April
1977 RO rating decision. The additional service department
records added to the claims folder since that decision were
not in existence at the time of the April 1977 RO rating
decision. As such, the finality exception under 38 C.F.R.
§ 3.156(c)(1) do not apply to this claim.
Finally, the Veteran has raised the issue of entitlement to
TDIU. The Board referred this issue to the RO in April 2008.
In May 2009, the Court held that a request for TDIU, whether
expressly raised by a Veteran or reasonably raised by the
record, is not a separate claim for benefits, but rather
involves an attempt to obtain an appropriate rating for a
disability or disabilities which is part of a pending claim
for increased compensation benefits. Rice v. Shinseki, 22
Vet. App. 447, 453-54 (2009). See also Comer v. Peake, 552
F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to
TDIU is not a free-standing claim which must be pled with
specificity).
Pursuant to Rice, the Board finds that a claim of entitlement
to TDIU is currently before the Board. This matter, which
has been listed as a separate claim for administrative
purposes, is also addressed in the remand following this
decision.
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
Generally, service connection requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000).
A disorder may be service-connected if the evidence of record
reveals that the veteran currently has a disorder that was
chronic in service or, if not chronic, that was exhibited in
service with continuity of symptomatology demonstrated
thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet.
App. 488, 494-97 (1997).
Certain chronic diseases, such as psychosis, may be presumed
to have been incurred during service if they become disabling
to a compensable degree within one year of separation from
active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137;
38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed more than one
year after discharge may still be service connected if all
the evidence, including pertinent service records,
establishes that the disorder was incurred in service.
38 C.F.R. § 3.303(d).
The term "veteran" means a person who served in the active
military, naval, or air service and who was discharged or
released therefrom under conditions other than dishonorable.
38 U.S.C.A. § 101(2). The term "active duty" includes
full-time duty in the Armed Forces, other than ACDUTRA.
38 U.S.C.A. § 101(21). The term Armed Forces means the
United States Army, Navy, Marine Corps, Air Force, and Coast
Guard, including the reserve components thereof. 38 U.S.C.A.
§ 101(10).
Active military, naval, or air service includes any period of
ACDUTRA during which the individual concerned was disabled or
died from a disease or injury incurred in or aggravated in
line of duty or period of inactive duty training (INACDUTRA)
during which the individual concerned was disabled or died
from injury incurred in or aggravated in line of duty.
38 U.S.C.A. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d).
ACDUTRA is, inter alia, full-time duty in the Armed Forces
performed by Reserves for training purposes. 38 C.F.R.
§ 3.6(c)(1).
With respect members of the ARNG, ACDUTRA means full-time
duty under section 316, 502, 503, 505 of title 32, or the
prior corresponding provisions of law. 38 U.S.C.A.
§ 101(22)(c). INACDUTRA includes duty (other than full-time
duty) performed by a member of the National Guard of any
State, under 32 U.S.C. §§ 316, 502, 503, 504, or 505, or the
prior corresponding provisions of law. 38 C.F.R.
§ 3.6(d)(4). Any individual (1) who, when authorized or
required by competent authority, assumes an obligation to
perform ACDUTRA or INACDUTRA for training; and (2) who is
disabled or dies from an injury or covered disease incurred
while proceeding directly to or returning directly from such
ACDUTRA or INACDUTRA shall be deemed to have been on ACDUTRA
or INACDUTRA, as the case may be. 38 C.F.R. § 3.6(e).
Presumptive periods do not apply to periods of ACDUTRA or
INACDUTRA unless the veteran is deemed a "veteran" for
purposes of 38 U.S.C.A. § 101(21), which requires being
service-connected for disease or injury during the period of
ACDUTRA or INACDUTRA service at issue. See Biggins v.
Derwinski, 1 Vet. App. 474, 477-78 (1991); Hines v. Principi,
18 Vet. App. 227 (2004); Mercado-Martinez v. West, 11 Vet.
App. 415 (1998); Paulson v. Brown, 7 Vet. App. 466 (1995).
A veteran who served during a period of war, or after
December 31, 1946, will be considered to have been in sound
condition when examined, accepted and enrolled for service,
except as to defects, infirmities, or disorders noted at
entrance into service, or where clear and unmistakable
(obvious or manifest) evidence demonstrates that an injury or
disease existed prior to service and was not aggravated by
such service. 38 U.S.C.A. § 1111.
A pre-existing injury or disease will be considered to have
been aggravated during service where there is an increase in
disability during service unless there is a specific finding
that the increase in disability is due to the natural
progress of the disease. 38 U.S.C.A. § 1153. Aggravation of
a pre-existing injury or disease will not be conceded where
the disability underwent no increase in severity during
service on the basis of all the evidence of record pertaining
to the manifestations of the disability prior to, during and
subsequent to service. 38 C.F.R. § 3.306.
Service connection may be granted, on a secondary basis, for
a disability which is proximately due to, or the result of,
an established service-connected disorder. 38 C.F.R.
§ 3.310. Similarly, any increase in severity of a
nonservice-connected disease or injury that is proximately
due to or the result of a service-connected disease or
injury, and not due to the natural progress of the
nonservice-connected disease, will be service-connected.
Allen v. Brown, 7 Vet. App. 439 (1995). In the latter
instance, the nonservice-connected disease or injury is said
to have been aggravated by the service-connected disease or
injury. 38 C.F.R. § 3.310. In cases of aggravation of a
veteran's nonservice-connected disability by a service-
connected disability, such veteran shall be compensated for
the degree of disability over and above the degree of
disability existing prior to the aggravation. 38 C.F.R.
§ 3.322.
Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to
implement the decision by the United States Court of Appeals
for Veterans Claims (Court) in Allen v. Principi, 7 Vet. App.
439 (1995), which addressed the subject of the granting of
service connection for the aggravation of a nonservice-
connected condition by a service-connected condition. See 71
Fed. Reg. 52,744-47 (Sept. 7, 2006). The existing provision
at 38 C.F.R. § 3.310(b) was moved to sub-section (c). Under
the revised section 3.310(b), the regulation provides that:
Any increase in severity of a nonservice-
connected disease or injury that is proximately
due to or the result of a service-connected
disease or injury, and not due to the natural
progress of the nonservice-connected disease,
will be service connected. However, VA will not
concede that a nonservice-connected disease or
injury was aggravated by a service-connected
disease or injury unless the baseline level of
severity of the nonservice-connected disease or
injury is established by medical evidence created
before the onset of aggravation or by the
earliest medical evidence created at any time
between the onset of aggravation and the receipt
of medical evidence establishing the current
level of severity of the nonservice-connected
disease or injury. The rating activity will
determine the baseline and current levels of
severity under the Schedule for Rating
Disabilities (38 C.F.R. part 4) and determine the
extent of aggravation by deducting the baseline
level of severity, as well as any increase in
severity due to the natural progress of the
disease, from the current level.
71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R.
§ 3.310(b)).
The Board finds no prejudice to the Veteran in evaluating the
aspect of the claim involving secondary service connection
under either the old or new criteria, which came in effect in
October 2006 to address the Allen decision. The Board has
reviewed this case under both Allen and the old and new
criteria. See generally, Kuzma, 341 F.3d 1327 (Fed. Cir.
2003); VAOPGCPREC 7-2003, 69 Fed. Reg. 25179 (2004).
Disability evaluations are determined by the application of
the facts presented to VA's Schedule for Rating Disabilities
(Rating Schedule) at 38 C.F.R. Part 4. The percentage
ratings contained in the Rating Schedule represent, as far as
can be practicably determined, the average impairment in
earning capacity resulting from diseases and injuries
incurred or aggravated during military service and the
residual conditions in civilian occupations. 38 U.S.C.A.
§ 1155; 38 C.F.R. §§ 3.321(a), 4.1.
In evaluating the severity of a particular disability, it is
essential to consider its history. 38 C.F.R. § 4.1; Peyton
v. Derwinski, 1 Vet. App. 282 (1991). Where there is a
question as to which of two evaluations shall be applied, the
higher rating will be assigned if the disability picture more
nearly approximates the criteria required for that
evaluation. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7.
If there is disagreement with the initial rating assigned
following a grant of service connection, separate ratings can
be assigned for separate periods of time, based on the facts
found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See
AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original
or an increased rating remains in controversy when less than
the maximum available benefit is awarded). Reasonable doubt
as to the degree of disability will be resolved in the
veteran's favor. 38 C.F.R. § 4.3.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary
importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
However, separate ratings may also be assigned for separate
periods of time based on the facts found. Hart v. Mansfield,
21 Vet. App. 505 (2007). The relevant temporal focus for
adjudicating an increased rating claim is on the evidence
concerning the state of the disability from the time period
one year before the claim was filed until VA makes a final
decision on the claim. Id. See generally 38 U.S.C.A.
§ 5110(b)(2).
In cases where there are conflicting statements or opinions
from medical professionals, it is within the Board's province
to weigh the probative value of those opinions. In Guerrieri
v. Brown, 4 Vet. App. 467, 470-71 (1993), the Court stated:
The probative value of medical opinion evidence
is based on the medical expert's personal
examination of the patient, the physician's
knowledge and skill in analyzing the data, and
the medical conclusion that the physician
reaches. . . . As is true with any piece of
evidence, the credibility and weight to be
attached to these opinions [are] within the
province of the adjudicators; . . .
So long as the Board provides an adequate reason or basis for
doing so, the Board does not err by favoring one competent
medical opinion over another. See Owens v. Brown, 7 Vet.
App. 429, 433 (1995).
The VA benefits system does not favor the opinion of a VA
examiner over a private examiner, or vice versa. See
38 U.S.C.A. § 5125; White v. Principi, 243 F.3d 1378, 1381
(Fed. Cir. 2001) (declining to adopt the treating physician
rule for adjudicating VA benefits). Regardless of the
source, an examination report must minimally meet the
requirement of being sufficiently complete to be adequate for
the purpose of adjudicating the claim. See 38 U.S.C.A.
§ 5125; 38 C.F.R. § 4.2.
The probative value of a medical opinion is generally based
on the scope of the examination or review, as well as the
relative merits of the expert's qualifications and analytical
findings, and the probative weight of a medical opinion may
be reduced if the examiner fails to explain the basis for an
opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993).
A medical examiner's review of the claims folder may heighten
the probative value of an opinion, as the claims folder
generally contains all documents associated with a veteran's
disability claim, including not only medical examination
reports and service treatment records (STRs), but also
correspondence, raw medical data, financial information, RO
rating decisions, Notices of Disagreement, materials
pertaining to claims for conditions not currently at issue
and Board decisions disposing of earlier claims. See Nieves-
Rodriguez v. Peake, 22 Vet. App. 295 (2008).
However, an examiner's review of the claims folder is not
required in each case. See Snuffer v. Gobber, 10 Vet. App.
400, 403-04 (1997) (review of claims file not required where
it would not change the objective and dispositive findings
made during a medical examination); see also D'Aries v.
Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not
necessary for a VA medical examiner to specify review of the
claims folder where it is clear from the report that the
examiner has done so and is familiar with the claimant's
extensive medical history).
A significant factor to be considered for any opinion is
based on an accurate factual predicate, regardless of whether
the information supporting the opinion is obtained by review
of medical records or lay reports of injury, symptoms and/or
treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed.
Cir. 2000) (examiner opinion based on accurate lay history
deemed competent medical evidence in support of the claim);
Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding
that a medical opinion cannot be disregarded solely on the
rationale that the medical opinion was based on history given
by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993)
(holding that the Board may reject a medical opinion based on
an inaccurate factual basis).
Although formal rules of evidence do not apply in the VA
benefits system, the Court has indicated that recourse to the
Federal Rules of Evidence may be appropriate if it assists in
the articulation of the reasons for the adjudicator's
decision. Rucker v. Brown, 10 Vet. App. 67, 73 (1997).
Within the VA benefits system, VA medical examiners and
private physicians offering medical opinions in veterans'
benefits cases are essentially considered expert witnesses.
Nieves-Rodriguez, supra.
In Nieves-Rodriguez, the Court indicated that the Federal
Rules of Evidence for evaluating expert medical opinion
before U.S. district courts, Fed.R.Evid. 702, are important,
guiding factors to be used by VA adjudicators in evaluating
the probative value of a medical opinion. The factors
identified in Fed.R.Evid 702 are as follows:
(1) The testimony is based upon sufficient facts
or data;
(2) the testimony is the product of reliable
principles and methods; and
(3) the expert witness has applied the principles
and methods reliably to the facts of the case.
A layperson is generally not capable of opining on matters
requiring medical knowledge. Routen v. Brown, 10 Vet. App.
183, 186 (1997). Where the determinative issue involves
medical causation or a medical diagnosis, there must be
competent medical evidence to the effect that the claim is
plausible; lay assertions of medical status generally do not
constitute competent medical evidence. Grottveit v. Brown, 5
Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992).
However, lay evidence can be competent and sufficient to
establish a diagnosis of a condition when (1) a layperson is
competent to identify the medical condition, (e.g., a broken
leg), (2) the layperson is reporting a contemporaneous
medical diagnosis, or (3) lay testimony describing symptoms
at the time supports a later diagnosis by a medical
professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.
Cir. 2007).
In essence, lay testimony is competent when it regards the
readily observable features or symptoms of injury or illness
and "may provide sufficient support for a claim of service
connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994).
See also 38 C.F.R. § 3.159(a)(2). In this regard, the Court
has emphasized that when a condition may be diagnosed by its
unique and readily identifiable features, the presence of the
disorder is not a determination "medical in nature" and is
capable of lay observation. In such cases, the Board is
within its province to weigh that testimony and to make a
credibility determination as to whether that evidence
supports a finding of service incurrence and continuity of
symptomatology sufficient to establish service connection.
See Barr v. Nicholson, 21 Vet. App. 303 (2007).
If the evidence for and against a claim is in equipoise, the
claim will be granted. A claim will be denied only if the
preponderance of the evidence is against the claim. See
38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v.
Derwinski, 1 Vet. App. 49, 56 (1990).
Lumbar spine disability
In this case, the RO issued a rating decision in February
1999 which granted service connection for a low back disorder
and assigned a 20 percent evaluation. The Veteran appealed
the 20 percent rating initially assigned. An October 2005
Board decision awarded a 40 percent rating effective to the
date of claim, but the remaining aspect of his claim was
subject to a Court remand. Hence, the issue currently before
the Board is whether the Veteran is entitled to an initial
rating greater than 40 percent for his back disorder for any
time since the inception of his appeal.
Notably, the Veteran's diagnosis of lumbar spine disability
has changed during the appeal period. For ease of reference,
the Board will refer to the service-connected disability as a
lumbar spine disability.
The Board notes that the criteria for rating disabilities of
the spine were amended on two occasions since the Veteran
filed this claim. The applicable rating criteria for IVDS
were amended effective September 23, 2002. 67 Fed. Reg.
54,345-54,349 (Aug. 22, 2002). These changes were
incorporated into subsequent changes to the rating criteria
applicable to the diseases and injuries of the spine under
38 C.F.R. § 4.71a, which are effective September 26, 2003.
68 Fed. Reg. 51,454 (Aug. 27, 2003).
The Board is required to consider the claim in light of both
the former and revised schedular rating criteria to determine
whether an increased rating for the Veteran's disability is
warranted. VA's Office of General Counsel has determined
that the amended rating criteria, if favorable to the claim,
can be applied only for periods from and after the effective
date of the regulatory change. See VAOPGCPREC 3-00 (Apr. 10,
2000); 38 U.S.C.A. § 5110(g).
The Veteran's 40 percent rating effective to the date of
claim represents the maximum schedular ratings under DC 5292
(lumbar spine motion) and DC 5295 (lumbosacral strain).
Under the old criteria, a higher 60 percent rating is
available under the former provisions of DC 5293, in effect
before September 23, 2002, which provide criteria for
evaluating IVDS. A 40 percent rating contemplated severely
disabling IVDS with recurring attacks and intermittent
relief. A 60 percent rating was warranted for pronounced
IVDS with persistent symptoms compatible with sciatic
neuropathy with characteristic pain and demonstrable muscle
spasm, absent ankle jerk, or other neurological findings
appropriate to the site of the diseased disc with little
intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2002).
Additionally, a 50 percent rating was warranted for
unfavorable ankylosis of the lumbar spine. 38 C.F.R.
§ 4.71a, DC 5289 (2002).
Under the revised provisions of DC 5293, in effect from
September 23, 2002 to September 25, 2003, IVDS
(preoperatively or postoperatively) was evaluated either on
the total duration of incapacitating episodes over the past
12 months or by combining under 38 C.F.R. § 4.25 separate
evaluations of its chronic orthopedic and neurologic
manifestations along with evaluations for all other
disabilities, whichever method results in the higher rating.
38 C.F.R. § 4.71a, DC 5293 (2003).
Effective September 26, 2003, the rating criteria applicable
to diseases and injuries of the spine under 38 C.F.R. § 4.71a
were amended by VA. These amendments included the changes
made to the criteria used to evaluate IVDS, which had become
effective in the previous year. 68 Fed. Reg. 51,454 (Aug.
27, 2003). The criteria for evaluating IVDS were essentially
unchanged from the September 2002 revisions, except that the
diagnostic code for IVDS was changed from 5293 to 5243.
38 C.F.R. § 4.71a, DC 5243.
Specifically, the September 2002 IVDS changes were
incorporated into the September 2003 amendments and stipulate
that IVDS (preoperatively or postoperatively) will be
evaluated under the General Rating Formula for Diseases and
Injuries of the Spine or under the Formula for Rating IVDS
Based on Incapacitating Episodes, whichever method results in
the higher evaluation when all disabilities are combined
under § 4.25.
According to the Formula for Rating IVDS Based on
Incapacitating Episodes, a 40 percent rating contemplates
incapacitating episodes of IVDS having a total duration of at
least 4 weeks but less than 6 weeks during the past 12
months. A 60 percent rating is warranted for incapacitating
episodes of IVDS having a total duration of at least 6 weeks
during the past 12 months. 38 C.F.R. § 4.71a, DC 5243 (in
effect from Sept. 26, 2003).
For purposes of evaluations under DC 5243, an incapacitating
episode is a period of acute signs and symptoms due to IVDS
that requires bed rest prescribed by a physician and
treatment by a physician. Id. at Note 1.
If IVDS is present in more than one spinal segment, provided
that the effects in each spinal segment are clearly distinct,
each segment will be evaluated on the basis of incapacitating
episodes or under the General Rating Formula for Diseases and
Injuries of the Spine, whichever method results in a higher
evaluation for that segment. Id. at Note 2.
Also according to the new law, DC 5235 (vertebral fracture or
dislocation), DC 5236 (sacroiliac injury and weakness),
DC 5237 (lumbosacral or cervical strain), DC 5238 (spinal
stenosis), DC 5239 (spondylolisthesis or segmental
instability), DC 5240 (ankylosing spondylitis), DC 5241
(spinal fusion), DC 5242 (degenerative arthritis of the
spine) (see also, DC 5003) DC 5243 (IVDS) are evaluated under
the following General Rating Formula for Diseases and
Injuries of the Spine (unless IVDS is rated under the Formula
for Rating IVDS Based on Incapacitating Episodes).
Under the General Rating Formula for Diseases and Injuries of
the Spine, a 40 percent rating requires evidence of forward
flexion of the thoracolumbar spine limited to 30 degrees or
less; or, favorable ankylosis of the entire thoracolumbar
spine. A 50 percent evaluation will be assigned with
evidence of unfavorable ankylosis of the entire thoracolumbar
spine. A 100 percent rating requires evidence of unfavorable
ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5235-
5243 (in effect from Sept. 26, 2003).
Associated objective neurologic abnormalities, including, but
not limited to, bowel or bladder impairment, are to be
separately evaluated under an appropriate diagnostic code.
Id. at Note (1).
For VA compensation purposes, normal forward flexion of the
thoracolumbar spine is zero to 90 degrees, extension is zero
to 30 degrees, left and right lateral flexion is zero to 30
degrees, and left and right lateral rotation is zero to 30
degrees. The combined range of motion refers to the sum of
the range of forward flexion, extension, left and right
lateral flexion, and left and right rotation. The normal
combined range of motion of the thoracolumbar spine is 240
degrees. The normal ranges of motion for each component of
spinal motion provided in this note are the maximum that can
be used for calculation of the combined range of motion. Id.
at Note (2). (See also Plate V).
In exceptional cases, an examiner may state that because of
age, body habitus, neurologic disease, or other factors not
the result of disease or injury of the spine, the range of
motion of the spine in a particular individual should be
considered normal for that individual, even though it does
not conform to the normal range of motion stated in Note (2).
Provided that the examiner supplies an explanation, the
examiner's assessment that the range of motion is normal for
that individual will be accepted. Id. at Note (3).
Each range of motion measurement is to be rounded to the
nearest five degrees. Id. at Note (4).
For VA compensation purposes, unfavorable ankylosis is a
condition in which the entire cervical spine, the entire
thoracolumbar spine, or the entire spine is fixed in flexion
or extension, and the ankylosis results in one or more of the
following: difficulty walking because of a limited line of
vision; restricted opening of the mouth and chewing;
breathing limited to diaphragmatic respiration;
gastrointestinal symptoms due to pressure of the costal
margin on the abdomen; dyspnea or dysphagia; atlantoaxial or
cervical subluxation or dislocation; or neurologic symptoms
due to nerve root stretching. Fixation of a spinal segment
in neutral position (zero degrees) always represents
favorable ankylosis. Id. at Note (5).
Under DC 5003, degenerative arthritis established by X-ray
findings is rated on the basis of limitation of motion under
the appropriate diagnostic codes for the specific joint or
joints involved. When, however, the limitation of motion of
the specific joint or joints involved is noncompensable under
the appropriate diagnostic codes, a rating of 10 percent is
for application for each such major joint or group of minor
joints affected by limitation of motion, to be combined and
not added, under DC 5003. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. 38 C.F.R.
§ 4.71a, DC 5003.
The words "slight," "moderate" and "severe" as used in
the various DC's are not defined in VA's Schedule for Rating
Disabilities. Rather than applying a mechanical formula, the
Board must evaluate all of the evidence for "equitable and
just decisions." 38 C.F.R. § 4.6.
Evaluation of a service-connected disability involving a
joint rated on limitation of motion requires adequate
consideration of functional loss due to pain under 38 C.F.R.
§ 4.40 and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The
provisions of 38 C.F.R. § 4.40 state that disability of the
musculoskeletal system is primarily the inability, due to
damage or inflammation in parts of the system, to perform
normal working movements of the body with normal excursion,
strength, speed, coordination and endurance. Functional loss
may be due to the absence of part, or all, of the necessary
bones, joints and muscles, or associated structures. It may
also be due to pain supported by adequate pathology and
evidenced by visible behavior of the claimant undertaking the
motion. 38 C.F.R. § 4.40. The factors of disability
affecting joints are reduction of normal excursion of
movements in different planes, weakened movement, excess
fatigability, swelling and pain on movement. 38 C.F.R.
§ 4.45.
However, where a musculoskeletal disability is currently
evaluated at the highest schedular evaluation available based
upon limitation of motion, a DeLuca analysis is foreclosed.
Johnston v. Brown, 10 Vet. App. 80 (1997).
The assignment of a particular DC is "completely dependent
on the facts of a particular case" and involves
consideration of such factors as an individual's relevant
medical history, the current diagnosis, and demonstrated
symptomatology. Butts v. Brown, 5 Vet. App. 532, 538 (1993).
In rating disability involving injury to the peripheral
nerves and their residuals, attention is to be given to the
site and character of injury, the relative impairment in
motor function, trophic changes, or sensory disturbances.
38 C.F.R. § 4.120.
Neuritis, cranial or peripheral, characterized by loss of
reflexes, muscle atrophy, sensory disturbances, and constant
pain, at times excruciating, is to be rated on the scale
provided for injury of the nerve involved, with a maximum
equal to severe, incomplete paralysis. 38 C.F.R. § 4.123.
The maximum rating which may be assigned for neuritis not
characterized by organic changes as noted above will be that
for moderate, or with sciatic nerve involvement, for
moderately severe, incomplete paralysis. Id. Neuralgia,
cranial or peripheral, characterized usually by a dull and
intermittent pain, of typical distribution so as to identify
the nerve, is to be rated on the same scale, with a maximum
equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124.
In rating diseases of the peripheral nerves, the term
"incomplete paralysis" indicates a degree of lost or
impaired function substantially less than the type picture
for complete paralysis given with each nerve, whether due to
varied level of the nerve lesion or to partial regeneration.
38 C.F.R. § 4.124a. When the involvement is wholly sensory,
the rating should be for the mild, or at most, the moderate
degree. Id. The ratings for peripheral nerves are for
unilateral involvement; when bilateral, they are combined
with application of the bilateral factor. Id.
DC 8520 provides the rating criteria for paralysis of the
sciatic nerve, and therefore neuritis and neuralgia of that
nerve. 38 C.F.R. § 4.124a, DC 8520. Complete paralysis of
the sciatic nerve, which is rated as 80 percent disabling,
contemplates foot dangling and dropping, no active movement
possible of muscles below the knee, and flexion of the knee
weakened or (very rarely) lost. Id. Disability ratings of
10 percent, 20 percent and 40 percent are assignable for
incomplete paralysis which is mild, moderate or moderately
severe in degree, respectively. Id. A 60 percent rating is
warranted for severe incomplete paralysis with marked
muscular atrophy. Id. DC 8620 refers to neuritis of the
sciatic nerve while DC 8720 refers to neuralgia of the
sciatic nerve.
Historically, the Veteran was treated in service for low back
pain with occasional radiation of pain into the left lower
extremity. In June 1976, the Veteran was given an impression
of L4 herniated nucleus pulposus (HNP) with mild symptoms.
Post-service, VA clinical records in 1976 reflect the
Veteran's report of recurrent low back pain with numbness of
the left lower extremity.
In pertinent part, the Veteran had a third period of active
service from June 1992 to March 1994. A whole body bone scan
performed in January 1993 demonstrated an acute arthritis
inflammatory process in the left knee, both ankles, the low
lumbar vertebrae and both shoulders.
A private rheumatology examination in December 1994 noted the
Veteran's report of low back pain associated with numbness
and cramps of the left leg. The Veteran stated that his pain
"comes and goes" and worsened with sitting or standing for
30 minutes. Neurologic examination demonstrated no muscle
weakness, atrophy, fasciculations or loss of muscle strength.
The Veteran was noted to sit, stand and walk without
difficulty. X-ray examination demonstrated physiologic
lumbar lordosis radiographically compatible with muscle spasm
or paralumbar myositis, lumbar dextroscoliosis with apex at
L4, and anterior spondylotic changes at L4 and L5. The
Veteran was assessed with low back pain - muscular type. It
was noted that the Veteran could sit, stand, walk and handle
objects, but may have difficulty lifting and carrying.
A VA radiology report dated in February 1995 showed loss of
lordosis of the lumbar spine due to paralumbar muscle spasm
with spondylitic changes at L4 and L5 but without disc space
narrowing.
An October 1995 private physician examination noted that the
Veteran's lumbar spine demonstrated normal curvature and good
posture with no muscle spasm or tenderness.
A March 1996 National Guard Periodic Examination report noted
an assessment of L5 radiculopathy.
The Veteran was treated for exacerbations of low back pain in
April 1995 and February 1997. In February 1997, the Veteran
reported that his symptoms worsened with rainy weather and
improved with warming up of the body. He complained of a 4-
month history of low back pain which radiated to his left
posterior thigh. He alleged a need for assistance to get up
from his bed, and having difficulty ambulating long distances
and stairs. He subsequent underwent physical therapy. A
July 1997 clinical evaluation found no sensory deficits of
the lower extremities with 5/5 manual muscle testing (MMT).
A November 1997 X-ray examination demonstrated straightening
of normal lordosis possibly related to muscle spasm, and
degenerative lumbar spondylosis.
An October 1997 examination, conducted for the Social
Security Administration (SSA), included the Veteran's report
of generalized aches and pains, to include low back pain. He
reported limitations such as sitting for no more than 20
minutes, standing for 1/2 an hour, walking 10 minutes, lifting
and carrying 1 gallon of water, and handling objects.
Examination demonstrated tenderness in the paravertebral
muscles, gait disturbance, and 4/5 motor loss of the lower
extremities.
At a Board hearing in February 1998, the Veteran testified to
recurrent episodes of back spasm with pain upon walking or
sitting for prolonged periods of time. He treated his
symptoms with heat therapy and medications.
Thereafter, a September 1999 VA clinical record reflected the
Veteran's treatment for an exacerbation of increased (?) low
back pain (LBP). The Veteran described his pain as
intermittent and exacerbated with prolonged standing or
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to a disability rating greater than 40
percent for L4-L5 and L5-S1 spondylosis with associated small
central herniated nucleus pulposus with degenerative disc
disease and lumbar myositis.
2. Entitlement to a compensable disability rating for otitis
externa and otomycosis.
3. Entitlement to service connection for hypertension.
4. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for
psychophysiologic musculoskeletal disorder claimed as tension
headaches.
5. Entitlement to service connection for depression, on a
direct or secondary basis.
6. Entitlement to a total disability rating based upon
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. Mainelli, Counsel
INTRODUCTION
The Veteran had active service from November 1973 to November
1975, from March 1976 to November 1976, and again from June
1992 to March 1994. He also had periods of active duty for
training (ACDUTRA) and inactive duty for training
(INACDUTRA).
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from August 1998, February 1999, October
1999, and May 2000 decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) in San Juan, the
Commonwealth of Puerto Rico.
The Veteran disagreed with the February 1999 rating decision,
which granted service connection for a back disorder and
assigned a 20 percent disability rating, in April 2002. By
rating decision dated in February 2004, the RO increased the
Veteran's disability rating from 20 percent to 40 percent
with an effective date of February 20, 2002.
In September 2000, the Veteran requested an RO hearing. He
withdrew this hearing request in June 2001.
In October 2005, the Board granted an initial disability
rating of 40 percent for service-connected L4-L5 and L5-S1
spondylosis with associated small central herniated nucleus
pulposus with degenerative disc disease and lumbar myositis
for the time period prior to February 20, 2002. The Board
remanded the claim of whether new and material evidence has
been received to reopen a claim for entitlement to service
connection for psychophysiologic musculoskeletal disorder
claimed as tension headaches to the RO for further
evidentiary development.
In October 2005, the Board upheld the RO's denial of the
Veteran's remaining claims. The Veteran filed a timely
appeal to the U.S. Court of Appeals for Veterans Claims
(Court). In December 2006, the General Counsel for the
Department of Veterans Affairs (General Counsel) and the
Veteran's representative filed a motion to vacate the Board's
decision. The Court granted the motion that month, vacating
and remanding the case to the Board.
In April 2008, the Board remanded the case to the RO for
further evidentiary development.
The issues of entitlement to service connection for
hypertension and entitlement to TDIU are addressed in the
REMAND portion of the decision below and are REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
1. The Veteran's chronic orthopedic manifestations of
service-connected lumbar spine intervertebral disc syndrome
(IVDS) consist of severe limitation of motion absent
ankylosis.
2. The Veteran's chronic neurologic manifestations of
service-connected lumbar spine IVDS consist of right lower
radiculopathy absent significant sensory or motor deficits.
3. The Veteran's IVDS is not shown to be pronounced in
degree, the Veteran experiences more than intermittent relief
of symptoms of IVDS symptoms, and IVDS is not shown to
result in incapacitating episodes having a total duration of
at least 6 weeks in any given 12-month period.
4. The Veteran's otitis media is not shown to result in
frequent infectious episodes requiring prolonged treatment or
compensable hearing loss.
5. An unappealed April 1977 RO rating decision denied a
claim of entitlement to psychophysiological musculoskeletal
disorder, claimed as tension headaches, on the basis that
such disability was not incurred in or aggravated by service.
6. The evidence added to the record since the April 1977 RO
rating decision is not new and material as it contains no
non-cumulative evidence suggesting that the Veteran manifests
psychophysiological musculoskeletal disorder, claimed as
tension headaches, which was incurred in or aggravated by a
period of active service.
7. The Veteran's variously diagnosed psychiatric disorders
are not shown to be caused or aggravated during a period of
active service, a psychosis is not shown to have manifested
to a compensable degree within one year of a period of active
service, and the competent medical evidence establishes that
the Veteran's psychiatric disorder is not caused or
aggravated by service-connected disability.
CONCLUSIONS OF LAW
1. The criteria for a disability rating greater than 40
percent for L4-L5 and L5-S1 spondylosis with associated small
central herniated nucleus pulposus with degenerative disc
disease and lumbar myositis for the period of time beginning
February 20, 2002, have not been met. 38 U.S.C.A. §§ 1155,
5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.1, 4.2,
4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5289-
5295 (2002); 38 C.F.R. § 4.71a DC 5243 (effective September
26, 2003).
2. The criteria for a compensable disability rating for
otitis externa and otomycosis are not met. 38 U.S.C.A.
§§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.85, 4.87a
(in effect prior to June 10, 1999); 38 C.F.R. §§ 3.321(b),
4.85, 4.86, 4.87 (in effect since June 10, 1999).
3. An April 1977 RO rating decision, which denied service
connection for psychophysiologic musculoskeletal disorder
claimed as tension headaches, is final. 38 U.S.C.A.
§ 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2009).
4. Evidence received since the April 1977 RO rating decision
is not new and material; the claim of service connection
psychophysiologic musculoskeletal disorder claimed as tension
headaches is not reopened. 38 U.S.C.A. § 5108 (West 2002);
38 C.F.R. § 3.156 (in effect prior to August 29, 2001).
5. The Veteran's depression and other diagnosed acquired
psychiatric disorders were not incurred or aggravated in
service, may not be presumed to have been so incurred or
aggravated, and are not proximately due to or the result of
service-connected disability. 38 U.S.C.A. §§ 101(24), 1110,
1111, 1112, 1131, 1137, 1153, 5107 (West 2002); 38 C.F.R.
§§ 3.303, 3.307, 3.309, 3.310 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
One of the matters the Board must address is which issue or
issues are properly before it at this time. Under
38 U.S.C.A. § 7105(a), an appeal to the Board must be
initiated by a notice of disagreement (NOD) and completed by
a substantive appeal after a statement of the case (SOC) is
furnished to the claimant. In essence, the following
sequence is required: There must be a decision by the RO, the
claimant must express timely disagreement with the decision
(NOD), VA must respond by explaining the basis for the
decision to the claimant (SOC), and finally the claimant,
after receiving adequate notice of the basis of the decision,
must complete the process by stating his or her argument in a
timely-filed substantive appeal. See 38 C.F.R. §§ 20.200,
20.201, 20.202, and 20.203.
The issues on appeal include applications to reopen claims of
service connection for hypertension and a psychophysiologic
musculoskeletal disorder claimed as tension headaches. The
claim of service connection for hypertension was previously
denied by the Board in a November 1998 decision. The claim
of service connection for a psychophysiologic musculoskeletal
disorder claimed as tension headaches was finally denied by
an April 1977 RO rating decision.
As a general rule, once a claim has been disallowed, that
claim shall not thereafter be reopened and allowed based
solely upon the same factual basis. 38 U.S.C.A. § 5108;
38 C.F.R. § 3.156(a). However, if the claimant can
thereafter present new and material evidence, then the claim
shall be reopened and the former disposition of the claim
shall be reviewed. 38 U.S.C.A. § 5108.
An exception to the finality rule exists under 38 C.F.R.
§ 3.156(c). During the pendency of this appeal, the
provisions of 38 C.F.R. § 3.156(c) were amended, effective
October 6, 2006. See 71 Fed. Reg. 52,455-52,457 (Sept. 6,
2006) (codified at 38 C.F.R. § 3.156(c)). If a law or
regulation changes during the course of a claim or an appeal,
the version more favorable to the veteran will apply, to the
extent permitted by any stated effective date in the
amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-
2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003);
VAOPGCPREC 7-2003. This law did not explicitly limit
retroactive effect. Therefore, this provision applies to the
current claims on appeal.
The amended regulation of 38 C.F.R. § 3.156(c) provides as
follows:
(c) Service department records.
(1) Notwithstanding any other section in this
part, at any time after VA issues a decision on a
claim, if VA receives or associates with the
claims file relevant official service department
records that existed and had not been associated
with the claims file when VA first decided the
claim, VA will reconsider the claim,
notwithstanding paragraph (a) of this section.
Such records include, but are not limited to:
(i) Service records that are related to a
claimed in- service event, injury, or disease,
regardless of whether such records mention the
veteran by name, as long as the other requirements
of paragraph (c) of this section are met;
(ii) Additional service records forwarded by
the Department of Defense or the service
department to VA any time after VA's original
request for service records; and
(iii) Declassified records that could not
have been obtained because the records were
classified when VA decided the claim.
(2) Paragraph (c)(1) of this section does not
apply to records that VA could not have obtained
when it decided the claim because the records did
not exist when VA decided the claim, or because
the claimant failed to provide sufficient
information for VA to identify and obtain the
records from the respective service department,
the Joint Services Records Research Center, or
from any other official source.
(3) An award made based all or in part on the
records identified by paragraph (c)(1) of this
section is effective on the date entitlement arose
or the date VA received the previously decided
claim, whichever is later, or such other date as
may be authorized by the provisions of this part
applicable to the previously decided claim.
(4) A retroactive evaluation of disability
resulting from disease or injury subsequently
service connected on the basis of the new evidence
from the service department must be supported
adequately by medical evidence. Where such
records clearly support the assignment of a
specific rating over a part or the entire period
of time involved, a retroactive evaluation will be
assigned accordingly, except as it may be affected
by the filing date of the original claim.
In March 2000, the Veteran submitted an August 1996 Line of
Duty determination from the Puerto Rico National Guard
regarding his hospitalization for hypertension during an
ACDUTRA period. Thereafter, the RO received copies of
missing service treatment records (STRs) for the Veteran's
period of active service from June 1992 to March 1994, which
included a July 1992 entrance examination showing that the
Veteran entered this period of service with pre-existing
hypertension.
These service department records, which are clearly relevant
to the hypertension claim, existed at the time of the Board's
November 1998 decision but had not been associated with the
claims folder.
Therefore, pursuant to 38 C.F.R. § 3.156(c)(1), the Veteran
is entitled to have his hypertension claim reviewed on a de
novo basis. This claim is addressed in the remand following
this decision.
As indicated above, the claim of entitlement to service
connection for a psychophysiologic musculoskeletal disorder
claimed as tension headaches was finally denied in an April
1977 RO rating decision. The additional service department
records added to the claims folder since that decision were
not in existence at the time of the April 1977 RO rating
decision. As such, the finality exception under 38 C.F.R.
§ 3.156(c)(1) do not apply to this claim.
Finally, the Veteran has raised the issue of entitlement to
TDIU. The Board referred this issue to the RO in April 2008.
In May 2009, the Court held that a request for TDIU, whether
expressly raised by a Veteran or reasonably raised by the
record, is not a separate claim for benefits, but rather
involves an attempt to obtain an appropriate rating for a
disability or disabilities which is part of a pending claim
for increased compensation benefits. Rice v. Shinseki, 22
Vet. App. 447, 453-54 (2009). See also Comer v. Peake, 552
F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to
TDIU is not a free-standing claim which must be pled with
specificity).
Pursuant to Rice, the Board finds that a claim of entitlement
to TDIU is currently before the Board. This matter, which
has been listed as a separate claim for administrative
purposes, is also addressed in the remand following this
decision.
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
Generally, service connection requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000).
A disorder may be service-connected if the evidence of record
reveals that the veteran currently has a disorder that was
chronic in service or, if not chronic, that was exhibited in
service with continuity of symptomatology demonstrated
thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet.
App. 488, 494-97 (1997).
Certain chronic diseases, such as psychosis, may be presumed
to have been incurred during service if they become disabling
to a compensable degree within one year of separation from
active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137;
38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed more than one
year after discharge may still be service connected if all
the evidence, including pertinent service records,
establishes that the disorder was incurred in service.
38 C.F.R. § 3.303(d).
The term "veteran" means a person who served in the active
military, naval, or air service and who was discharged or
released therefrom under conditions other than dishonorable.
38 U.S.C.A. § 101(2). The term "active duty" includes
full-time duty in the Armed Forces, other than ACDUTRA.
38 U.S.C.A. § 101(21). The term Armed Forces means the
United States Army, Navy, Marine Corps, Air Force, and Coast
Guard, including the reserve components thereof. 38 U.S.C.A.
§ 101(10).
Active military, naval, or air service includes any period of
ACDUTRA during which the individual concerned was disabled or
died from a disease or injury incurred in or aggravated in
line of duty or period of inactive duty training (INACDUTRA)
during which the individual concerned was disabled or died
from injury incurred in or aggravated in line of duty.
38 U.S.C.A. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d).
ACDUTRA is, inter alia, full-time duty in the Armed Forces
performed by Reserves for training purposes. 38 C.F.R.
§ 3.6(c)(1).
With respect members of the ARNG, ACDUTRA means full-time
duty under section 316, 502, 503, 505 of title 32, or the
prior corresponding provisions of law. 38 U.S.C.A.
§ 101(22)(c). INACDUTRA includes duty (other than full-time
duty) performed by a member of the National Guard of any
State, under 32 U.S.C. §§ 316, 502, 503, 504, or 505, or the
prior corresponding provisions of law. 38 C.F.R.
§ 3.6(d)(4). Any individual (1) who, when authorized or
required by competent authority, assumes an obligation to
perform ACDUTRA or INACDUTRA for training; and (2) who is
disabled or dies from an injury or covered disease incurred
while proceeding directly to or returning directly from such
ACDUTRA or INACDUTRA shall be deemed to have been on ACDUTRA
or INACDUTRA, as the case may be. 38 C.F.R. § 3.6(e).
Presumptive periods do not apply to periods of ACDUTRA or
INACDUTRA unless the veteran is deemed a "veteran" for
purposes of 38 U.S.C.A. § 101(21), which requires being
service-connected for disease or injury during the period of
ACDUTRA or INACDUTRA service at issue. See Biggins v.
Derwinski, 1 Vet. App. 474, 477-78 (1991); Hines v. Principi,
18 Vet. App. 227 (2004); Mercado-Martinez v. West, 11 Vet.
App. 415 (1998); Paulson v. Brown, 7 Vet. App. 466 (1995).
A veteran who served during a period of war, or after
December 31, 1946, will be considered to have been in sound
condition when examined, accepted and enrolled for service,
except as to defects, infirmities, or disorders noted at
entrance into service, or where clear and unmistakable
(obvious or manifest) evidence demonstrates that an injury or
disease existed prior to service and was not aggravated by
such service. 38 U.S.C.A. § 1111.
A pre-existing injury or disease will be considered to have
been aggravated during service where there is an increase in
disability during service unless there is a specific finding
that the increase in disability is due to the natural
progress of the disease. 38 U.S.C.A. § 1153. Aggravation of
a pre-existing injury or disease will not be conceded where
the disability underwent no increase in severity during
service on the basis of all the evidence of record pertaining
to the manifestations of the disability prior to, during and
subsequent to service. 38 C.F.R. § 3.306.
Service connection may be granted, on a secondary basis, for
a disability which is proximately due to, or the result of,
an established service-connected disorder. 38 C.F.R.
§ 3.310. Similarly, any increase in severity of a
nonservice-connected disease or injury that is proximately
due to or the result of a service-connected disease or
injury, and not due to the natural progress of the
nonservice-connected disease, will be service-connected.
Allen v. Brown, 7 Vet. App. 439 (1995). In the latter
instance, the nonservice-connected disease or injury is said
to have been aggravated by the service-connected disease or
injury. 38 C.F.R. § 3.310. In cases of aggravation of a
veteran's nonservice-connected disability by a service-
connected disability, such veteran shall be compensated for
the degree of disability over and above the degree of
disability existing prior to the aggravation. 38 C.F.R.
§ 3.322.
Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to
implement the decision by the United States Court of Appeals
for Veterans Claims (Court) in Allen v. Principi, 7 Vet. App.
439 (1995), which addressed the subject of the granting of
service connection for the aggravation of a nonservice-
connected condition by a service-connected condition. See 71
Fed. Reg. 52,744-47 (Sept. 7, 2006). The existing provision
at 38 C.F.R. § 3.310(b) was moved to sub-section (c). Under
the revised section 3.310(b), the regulation provides that:
Any increase in severity of a nonservice-
connected disease or injury that is proximately
due to or the result of a service-connected
disease or injury, and not due to the natural
progress of the nonservice-connected disease,
will be service connected. However, VA will not
concede that a nonservice-connected disease or
injury was aggravated by a service-connected
disease or injury unless the baseline level of
severity of the nonservice-connected disease or
injury is established by medical evidence created
before the onset of aggravation or by the
earliest medical evidence created at any time
between the onset of aggravation and the receipt
of medical evidence establishing the current
level of severity of the nonservice-connected
disease or injury. The rating activity will
determine the baseline and current levels of
severity under the Schedule for Rating
Disabilities (38 C.F.R. part 4) and determine the
extent of aggravation by deducting the baseline
level of severity, as well as any increase in
severity due to the natural progress of the
disease, from the current level.
71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R.
§ 3.310(b)).
The Board finds no prejudice to the Veteran in evaluating the
aspect of the claim involving secondary service connection
under either the old or new criteria, which came in effect in
October 2006 to address the Allen decision. The Board has
reviewed this case under both Allen and the old and new
criteria. See generally, Kuzma, 341 F.3d 1327 (Fed. Cir.
2003); VAOPGCPREC 7-2003, 69 Fed. Reg. 25179 (2004).
Disability evaluations are determined by the application of
the facts presented to VA's Schedule for Rating Disabilities
(Rating Schedule) at 38 C.F.R. Part 4. The percentage
ratings contained in the Rating Schedule represent, as far as
can be practicably determined, the average impairment in
earning capacity resulting from diseases and injuries
incurred or aggravated during military service and the
residual conditions in civilian occupations. 38 U.S.C.A.
§ 1155; 38 C.F.R. §§ 3.321(a), 4.1.
In evaluating the severity of a particular disability, it is
essential to consider its history. 38 C.F.R. § 4.1; Peyton
v. Derwinski, 1 Vet. App. 282 (1991). Where there is a
question as to which of two evaluations shall be applied, the
higher rating will be assigned if the disability picture more
nearly approximates the criteria required for that
evaluation. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7.
If there is disagreement with the initial rating assigned
following a grant of service connection, separate ratings can
be assigned for separate periods of time, based on the facts
found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See
AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original
or an increased rating remains in controversy when less than
the maximum available benefit is awarded). Reasonable doubt
as to the degree of disability will be resolved in the
veteran's favor. 38 C.F.R. § 4.3.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary
importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
However, separate ratings may also be assigned for separate
periods of time based on the facts found. Hart v. Mansfield,
21 Vet. App. 505 (2007). The relevant temporal focus for
adjudicating an increased rating claim is on the evidence
concerning the state of the disability from the time period
one year before the claim was filed until VA makes a final
decision on the claim. Id. See generally 38 U.S.C.A.
§ 5110(b)(2).
In cases where there are conflicting statements or opinions
from medical professionals, it is within the Board's province
to weigh the probative value of those opinions. In Guerrieri
v. Brown, 4 Vet. App. 467, 470-71 (1993), the Court stated:
The probative value of medical opinion evidence
is based on the medical expert's personal
examination of the patient, the physician's
knowledge and skill in analyzing the data, and
the medical conclusion that the physician
reaches. . . . As is true with any piece of
evidence, the credibility and weight to be
attached to these opinions [are] within the
province of the adjudicators; . . .
So long as the Board provides an adequate reason or basis for
doing so, the Board does not err by favoring one competent
medical opinion over another. See Owens v. Brown, 7 Vet.
App. 429, 433 (1995).
The VA benefits system does not favor the opinion of a VA
examiner over a private examiner, or vice versa. See
38 U.S.C.A. § 5125; White v. Principi, 243 F.3d 1378, 1381
(Fed. Cir. 2001) (declining to adopt the treating physician
rule for adjudicating VA benefits). Regardless of the
source, an examination report must minimally meet the
requirement of being sufficiently complete to be adequate for
the purpose of adjudicating the claim. See 38 U.S.C.A.
§ 5125; 38 C.F.R. § 4.2.
The probative value of a medical opinion is generally based
on the scope of the examination or review, as well as the
relative merits of the expert's qualifications and analytical
findings, and the probative weight of a medical opinion may
be reduced if the examiner fails to explain the basis for an
opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993).
A medical examiner's review of the claims folder may heighten
the probative value of an opinion, as the claims folder
generally contains all documents associated with a veteran's
disability claim, including not only medical examination
reports and service treatment records (STRs), but also
correspondence, raw medical data, financial information, RO
rating decisions, Notices of Disagreement, materials
pertaining to claims for conditions not currently at issue
and Board decisions disposing of earlier claims. See Nieves-
Rodriguez v. Peake, 22 Vet. App. 295 (2008).
However, an examiner's review of the claims folder is not
required in each case. See Snuffer v. Gobber, 10 Vet. App.
400, 403-04 (1997) (review of claims file not required where
it would not change the objective and dispositive findings
made during a medical examination); see also D'Aries v.
Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not
necessary for a VA medical examiner to specify review of the
claims folder where it is clear from the report that the
examiner has done so and is familiar with the claimant's
extensive medical history).
A significant factor to be considered for any opinion is
based on an accurate factual predicate, regardless of whether
the information supporting the opinion is obtained by review
of medical records or lay reports of injury, symptoms and/or
treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed.
Cir. 2000) (examiner opinion based on accurate lay history
deemed competent medical evidence in support of the claim);
Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding
that a medical opinion cannot be disregarded solely on the
rationale that the medical opinion was based on history given
by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993)
(holding that the Board may reject a medical opinion based on
an inaccurate factual basis).
Although formal rules of evidence do not apply in the VA
benefits system, the Court has indicated that recourse to the
Federal Rules of Evidence may be appropriate if it assists in
the articulation of the reasons for the adjudicator's
decision. Rucker v. Brown, 10 Vet. App. 67, 73 (1997).
Within the VA benefits system, VA medical examiners and
private physicians offering medical opinions in veterans'
benefits cases are essentially considered expert witnesses.
Nieves-Rodriguez, supra.
In Nieves-Rodriguez, the Court indicated that the Federal
Rules of Evidence for evaluating expert medical opinion
before U.S. district courts, Fed.R.Evid. 702, are important,
guiding factors to be used by VA adjudicators in evaluating
the probative value of a medical opinion. The factors
identified in Fed.R.Evid 702 are as follows:
(1) The testimony is based upon sufficient facts
or data;
(2) the testimony is the product of reliable
principles and methods; and
(3) the expert witness has applied the principles
and methods reliably to the facts of the case.
A layperson is generally not capable of opining on matters
requiring medical knowledge. Routen v. Brown, 10 Vet. App.
183, 186 (1997). Where the determinative issue involves
medical causation or a medical diagnosis, there must be
competent medical evidence to the effect that the claim is
plausible; lay assertions of medical status generally do not
constitute competent medical evidence. Grottveit v. Brown, 5
Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992).
However, lay evidence can be competent and sufficient to
establish a diagnosis of a condition when (1) a layperson is
competent to identify the medical condition, (e.g., a broken
leg), (2) the layperson is reporting a contemporaneous
medical diagnosis, or (3) lay testimony describing symptoms
at the time supports a later diagnosis by a medical
professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.
Cir. 2007).
In essence, lay testimony is competent when it regards the
readily observable features or symptoms of injury or illness
and "may provide sufficient support for a claim of service
connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994).
See also 38 C.F.R. § 3.159(a)(2). In this regard, the Court
has emphasized that when a condition may be diagnosed by its
unique and readily identifiable features, the presence of the
disorder is not a determination "medical in nature" and is
capable of lay observation. In such cases, the Board is
within its province to weigh that testimony and to make a
credibility determination as to whether that evidence
supports a finding of service incurrence and continuity of
symptomatology sufficient to establish service connection.
See Barr v. Nicholson, 21 Vet. App. 303 (2007).
If the evidence for and against a claim is in equipoise, the
claim will be granted. A claim will be denied only if the
preponderance of the evidence is against the claim. See
38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v.
Derwinski, 1 Vet. App. 49, 56 (1990).
Lumbar spine disability
In this case, the RO issued a rating decision in February
1999 which granted service connection for a low back disorder
and assigned a 20 percent evaluation. The Veteran appealed
the 20 percent rating initially assigned. An October 2005
Board decision awarded a 40 percent rating effective to the
date of claim, but the remaining aspect of his claim was
subject to a Court remand. Hence, the issue currently before
the Board is whether the Veteran is entitled to an initial
rating greater than 40 percent for his back disorder for any
time since the inception of his appeal.
Notably, the Veteran's diagnosis of lumbar spine disability
has changed during the appeal period. For ease of reference,
the Board will refer to the service-connected disability as a
lumbar spine disability.
The Board notes that the criteria for rating disabilities of
the spine were amended on two occasions since the Veteran
filed this claim. The applicable rating criteria for IVDS
were amended effective September 23, 2002. 67 Fed. Reg.
54,345-54,349 (Aug. 22, 2002). These changes were
incorporated into subsequent changes to the rating criteria
applicable to the diseases and injuries of the spine under
38 C.F.R. § 4.71a, which are effective September 26, 2003.
68 Fed. Reg. 51,454 (Aug. 27, 2003).
The Board is required to consider the claim in light of both
the former and revised schedular rating criteria to determine
whether an increased rating for the Veteran's disability is
warranted. VA's Office of General Counsel has determined
that the amended rating criteria, if favorable to the claim,
can be applied only for periods from and after the effective
date of the regulatory change. See VAOPGCPREC 3-00 (Apr. 10,
2000); 38 U.S.C.A. § 5110(g).
The Veteran's 40 percent rating effective to the date of
claim represents the maximum schedular ratings under DC 5292
(lumbar spine motion) and DC 5295 (lumbosacral strain).
Under the old criteria, a higher 60 percent rating is
available under the former provisions of DC 5293, in effect
before September 23, 2002, which provide criteria for
evaluating IVDS. A 40 percent rating contemplated severely
disabling IVDS with recurring attacks and intermittent
relief. A 60 percent rating was warranted for pronounced
IVDS with persistent symptoms compatible with sciatic
neuropathy with characteristic pain and demonstrable muscle
spasm, absent ankle jerk, or other neurological findings
appropriate to the site of the diseased disc with little
intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2002).
Additionally, a 50 percent rating was warranted for
unfavorable ankylosis of the lumbar spine. 38 C.F.R.
§ 4.71a, DC 5289 (2002).
Under the revised provisions of DC 5293, in effect from
September 23, 2002 to September 25, 2003, IVDS
(preoperatively or postoperatively) was evaluated either on
the total duration of incapacitating episodes over the past
12 months or by combining under 38 C.F.R. § 4.25 separate
evaluations of its chronic orthopedic and neurologic
manifestations along with evaluations for all other
disabilities, whichever method results in the higher rating.
38 C.F.R. § 4.71a, DC 5293 (2003).
Effective September 26, 2003, the rating criteria applicable
to diseases and injuries of the spine under 38 C.F.R. § 4.71a
were amended by VA. These amendments included the changes
made to the criteria used to evaluate IVDS, which had become
effective in the previous year. 68 Fed. Reg. 51,454 (Aug.
27, 2003). The criteria for evaluating IVDS were essentially
unchanged from the September 2002 revisions, except that the
diagnostic code for IVDS was changed from 5293 to 5243.
38 C.F.R. § 4.71a, DC 5243.
Specifically, the September 2002 IVDS changes were
incorporated into the September 2003 amendments and stipulate
that IVDS (preoperatively or postoperatively) will be
evaluated under the General Rating Formula for Diseases and
Injuries of the Spine or under the Formula for Rating IVDS
Based on Incapacitating Episodes, whichever method results in
the higher evaluation when all disabilities are combined
under § 4.25.
According to the Formula for Rating IVDS Based on
Incapacitating Episodes, a 40 percent rating contemplates
incapacitating episodes of IVDS having a total duration of at
least 4 weeks but less than 6 weeks during the past 12
months. A 60 percent rating is warranted for incapacitating
episodes of IVDS having a total duration of at least 6 weeks
during the past 12 months. 38 C.F.R. § 4.71a, DC 5243 (in
effect from Sept. 26, 2003).
For purposes of evaluations under DC 5243, an incapacitating
episode is a period of acute signs and symptoms due to IVDS
that requires bed rest prescribed by a physician and
treatment by a physician. Id. at Note 1.
If IVDS is present in more than one spinal segment, provided
that the effects in each spinal segment are clearly distinct,
each segment will be evaluated on the basis of incapacitating
episodes or under the General Rating Formula for Diseases and
Injuries of the Spine, whichever method results in a higher
evaluation for that segment. Id. at Note 2.
Also according to the new law, DC 5235 (vertebral fracture or
dislocation), DC 5236 (sacroiliac injury and weakness),
DC 5237 (lumbosacral or cervical strain), DC 5238 (spinal
stenosis), DC 5239 (spondylolisthesis or segmental
instability), DC 5240 (ankylosing spondylitis), DC 5241
(spinal fusion), DC 5242 (degenerative arthritis of the
spine) (see also, DC 5003) DC 5243 (IVDS) are evaluated under
the following General Rating Formula for Diseases and
Injuries of the Spine (unless IVDS is rated under the Formula
for Rating IVDS Based on Incapacitating Episodes).
Under the General Rating Formula for Diseases and Injuries of
the Spine, a 40 percent rating requires evidence of forward
flexion of the thoracolumbar spine limited to 30 degrees or
less; or, favorable ankylosis of the entire thoracolumbar
spine. A 50 percent evaluation will be assigned with
evidence of unfavorable ankylosis of the entire thoracolumbar
spine. A 100 percent rating requires evidence of unfavorable
ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5235-
5243 (in effect from Sept. 26, 2003).
Associated objective neurologic abnormalities, including, but
not limited to, bowel or bladder impairment, are to be
separately evaluated under an appropriate diagnostic code.
Id. at Note (1).
For VA compensation purposes, normal forward flexion of the
thoracolumbar spine is zero to 90 degrees, extension is zero
to 30 degrees, left and right lateral flexion is zero to 30
degrees, and left and right lateral rotation is zero to 30
degrees. The combined range of motion refers to the sum of
the range of forward flexion, extension, left and right
lateral flexion, and left and right rotation. The normal
combined range of motion of the thoracolumbar spine is 240
degrees. The normal ranges of motion for each component of
spinal motion provided in this note are the maximum that can
be used for calculation of the combined range of motion. Id.
at Note (2). (See also Plate V).
In exceptional cases, an examiner may state that because of
age, body habitus, neurologic disease, or other factors not
the result of disease or injury of the spine, the range of
motion of the spine in a particular individual should be
considered normal for that individual, even though it does
not conform to the normal range of motion stated in Note (2).
Provided that the examiner supplies an explanation, the
examiner's assessment that the range of motion is normal for
that individual will be accepted. Id. at Note (3).
Each range of motion measurement is to be rounded to the
nearest five degrees. Id. at Note (4).
For VA compensation purposes, unfavorable ankylosis is a
condition in which the entire cervical spine, the entire
thoracolumbar spine, or the entire spine is fixed in flexion
or extension, and the ankylosis results in one or more of the
following: difficulty walking because of a limited line of
vision; restricted opening of the mouth and chewing;
breathing limited to diaphragmatic respiration;
gastrointestinal symptoms due to pressure of the costal
margin on the abdomen; dyspnea or dysphagia; atlantoaxial or
cervical subluxation or dislocation; or neurologic symptoms
due to nerve root stretching. Fixation of a spinal segment
in neutral position (zero degrees) always represents
favorable ankylosis. Id. at Note (5).
Under DC 5003, degenerative arthritis established by X-ray
findings is rated on the basis of limitation of motion under
the appropriate diagnostic codes for the specific joint or
joints involved. When, however, the limitation of motion of
the specific joint or joints involved is noncompensable under
the appropriate diagnostic codes, a rating of 10 percent is
for application for each such major joint or group of minor
joints affected by limitation of motion, to be combined and
not added, under DC 5003. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion. 38 C.F.R.
§ 4.71a, DC 5003.
The words "slight," "moderate" and "severe" as used in
the various DC's are not defined in VA's Schedule for Rating
Disabilities. Rather than applying a mechanical formula, the
Board must evaluate all of the evidence for "equitable and
just decisions." 38 C.F.R. § 4.6.
Evaluation of a service-connected disability involving a
joint rated on limitation of motion requires adequate
consideration of functional loss due to pain under 38 C.F.R.
§ 4.40 and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The
provisions of 38 C.F.R. § 4.40 state that disability of the
musculoskeletal system is primarily the inability, due to
damage or inflammation in parts of the system, to perform
normal working movements of the body with normal excursion,
strength, speed, coordination and endurance. Functional loss
may be due to the absence of part, or all, of the necessary
bones, joints and muscles, or associated structures. It may
also be due to pain supported by adequate pathology and
evidenced by visible behavior of the claimant undertaking the
motion. 38 C.F.R. § 4.40. The factors of disability
affecting joints are reduction of normal excursion of
movements in different planes, weakened movement, excess
fatigability, swelling and pain on movement. 38 C.F.R.
§ 4.45.
However, where a musculoskeletal disability is currently
evaluated at the highest schedular evaluation available based
upon limitation of motion, a DeLuca analysis is foreclosed.
Johnston v. Brown, 10 Vet. App. 80 (1997).
The assignment of a particular DC is "completely dependent
on the facts of a particular case" and involves
consideration of such factors as an individual's relevant
medical history, the current diagnosis, and demonstrated
symptomatology. Butts v. Brown, 5 Vet. App. 532, 538 (1993).
In rating disability involving injury to the peripheral
nerves and their residuals, attention is to be given to the
site and character of injury, the relative impairment in
motor function, trophic changes, or sensory disturbances.
38 C.F.R. § 4.120.
Neuritis, cranial or peripheral, characterized by loss of
reflexes, muscle atrophy, sensory disturbances, and constant
pain, at times excruciating, is to be rated on the scale
provided for injury of the nerve involved, with a maximum
equal to severe, incomplete paralysis. 38 C.F.R. § 4.123.
The maximum rating which may be assigned for neuritis not
characterized by organic changes as noted above will be that
for moderate, or with sciatic nerve involvement, for
moderately severe, incomplete paralysis. Id. Neuralgia,
cranial or peripheral, characterized usually by a dull and
intermittent pain, of typical distribution so as to identify
the nerve, is to be rated on the same scale, with a maximum
equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124.
In rating diseases of the peripheral nerves, the term
"incomplete paralysis" indicates a degree of lost or
impaired function substantially less than the type picture
for complete paralysis given with each nerve, whether due to
varied level of the nerve lesion or to partial regeneration.
38 C.F.R. § 4.124a. When the involvement is wholly sensory,
the rating should be for the mild, or at most, the moderate
degree. Id. The ratings for peripheral nerves are for
unilateral involvement; when bilateral, they are combined
with application of the bilateral factor. Id.
DC 8520 provides the rating criteria for paralysis of the
sciatic nerve, and therefore neuritis and neuralgia of that
nerve. 38 C.F.R. § 4.124a, DC 8520. Complete paralysis of
the sciatic nerve, which is rated as 80 percent disabling,
contemplates foot dangling and dropping, no active movement
possible of muscles below the knee, and flexion of the knee
weakened or (very rarely) lost. Id. Disability ratings of
10 percent, 20 percent and 40 percent are assignable for
incomplete paralysis which is mild, moderate or moderately
severe in degree, respectively. Id. A 60 percent rating is
warranted for severe incomplete paralysis with marked
muscular atrophy. Id. DC 8620 refers to neuritis of the
sciatic nerve while DC 8720 refers to neuralgia of the
sciatic nerve.
Historically, the Veteran was treated in service for low back
pain with occasional radiation of pain into the left lower
extremity. In June 1976, the Veteran was given an impression
of L4 herniated nucleus pulposus (HNP) with mild symptoms.
Post-service, VA clinical records in 1976 reflect the
Veteran's report of recurrent low back pain with numbness of
the left lower extremity.
In pertinent part, the Veteran had a third period of active
service from June 1992 to March 1994. A whole body bone scan
performed in January 1993 demonstrated an acute arthritis
inflammatory process in the left knee, both ankles, the low
lumbar vertebrae and both shoulders.
A private rheumatology examination in December 1994 noted the
Veteran's report of low back pain associated with numbness
and cramps of the left leg. The Veteran stated that his pain
"comes and goes" and worsened with sitting or standing for
30 minutes. Neurologic examination demonstrated no muscle
weakness, atrophy, fasciculations or loss of muscle strength.
The Veteran was noted to sit, stand and walk without
difficulty. X-ray examination demonstrated physiologic
lumbar lordosis radiographically compatible with muscle spasm
or paralumbar myositis, lumbar dextroscoliosis with apex at
L4, and anterior spondylotic changes at L4 and L5. The
Veteran was assessed with low back pain - muscular type. It
was noted that the Veteran could sit, stand, walk and handle
objects, but may have difficulty lifting and carrying.
A VA radiology report dated in February 1995 showed loss of
lordosis of the lumbar spine due to paralumbar muscle spasm
with spondylitic changes at L4 and L5 but without disc space
narrowing.
An October 1995 private physician examination noted that the
Veteran's lumbar spine demonstrated normal curvature and good
posture with no muscle spasm or tenderness.
A March 1996 National Guard Periodic Examination report noted
an assessment of L5 radiculopathy.
The Veteran was treated for exacerbations of low back pain in
April 1995 and February 1997. In February 1997, the Veteran
reported that his symptoms worsened with rainy weather and
improved with warming up of the body. He complained of a 4-
month history of low back pain which radiated to his left
posterior thigh. He alleged a need for assistance to get up
from his bed, and having difficulty ambulating long distances
and stairs. He subsequent underwent physical therapy. A
July 1997 clinical evaluation found no sensory deficits of
the lower extremities with 5/5 manual muscle testing (MMT).
A November 1997 X-ray examination demonstrated straightening
of normal lordosis possibly related to muscle spasm, and
degenerative lumbar spondylosis.
An October 1997 examination, conducted for the Social
Security Administration (SSA), included the Veteran's report
of generalized aches and pains, to include low back pain. He
reported limitations such as sitting for no more than 20
minutes, standing for 1/2 an hour, walking 10 minutes, lifting
and carrying 1 gallon of water, and handling objects.
Examination demonstrated tenderness in the paravertebral
muscles, gait disturbance, and 4/5 motor loss of the lower
extremities.
At a Board hearing in February 1998, the Veteran testified to
recurrent episodes of back spasm with pain upon walking or
sitting for prolonged periods of time. He treated his
symptoms with heat therapy and medications.
Thereafter, a September 1999 VA clinical record reflected the
Veteran's treatment for an exacerbation of increased (?) low
back pain (LBP). The Veteran described his pain as
intermittent and exacerbated with prolonged standing or
sitting. He denied pain radiation but reported bilateral
lower extremity (LE) weakness and tingling. Examination was
significant for lower back muscle spasm, decreased (?)
lordosis, limited back flexion and tenderness in the
lumbosacral (LS) area, left greater than right. There was no
evidence of radiculopathy.
In May 2001, the Veteran underwent a VA consultation due to
low back pain which was affecting his activities of daily
living (ADLs) and performance in the wellness clinic. At
that time, the Veteran reported a history of intermittent low
back pain with a two week onset of pain radiating to his
right hip. He had 10/10 pain at night which improved to 8/10
during the day. Examination was significant for tenderness
in the right buttock and sciatic notch, limited back range of
motion, manual muscle testing decreased to 4/5 in the right
gluteus minimis and bilateral iliacus, and positive Patrick's
test on the right. The examiner provided an impression of
findings consistent with right sciatic bursitis. A
neurologic examination found no evidence of sensory or
neurologic deficits. In June 2001, the Veteran described his
low back pain as "almost gone."
The Veteran was afforded a VA Compensation and Pension (C&P)
examination in July 2001. At the time of the examination,
the Veteran complained of constant low back pain. He
described varying intensity which was severe most of the time
with diffuse aching pain and stiffness of the low back.
Occasionally, the pain radiated to the testicles and right
calf. He also experienced occasional numbness and weakness
of the right lower extremity. He denied fecal or urinary
incontinence. His symptoms were precipitated with supine
laying at night, prolonged sitting, or prolonged static
position. The Veteran described an inability to perform
household chores due to low back pain.
Upon physical examination, the VA examiner noted the
following ranges of motion of the thoracolumbar spine:
flexion of 60 degrees, extension of 10 degrees, lateral
bending to the right and left of 15 degrees, and rotation to
the right and left of 25 degrees. The back was painful in
all planes. There was tenderness to palpation and severe
spasms of the paravertebral muscles from T-12 to S-1
bilaterally. There was also flattening of the lumbosacral
lordosis. The musculature of the back was symmetrical.
There was no neurological deficit and no atrophy of the lower
extremities. Manual muscle test was 5/5 from L1 to S1
myotomes. Deep tendon reflexes were +2, patellar and
Achilles tendons bilaterally. Straight leg raise test was
painful. The diagnosis was severe lumbosacral myositis and
lumbar strain.
Thereafter, a private X-ray examination of the lumbosacral
spine in February 2002 was significant for mild disc space
narrowing at the L4-L5 and L5-S1 levels compatible with early
degenerative disc disease changes, and straightening of
lordotic curve probably related to muscular spasm. An August
2002 computerized tomography (CT) scan of the lumbar spine
showed moderate degenerative disc bulge at L3-L4 with minimal
narrowing of the intervertebral foramina, and marked
degenerative disc bulge at L4-L5 with osteophyte formations
producing marked narrowing of the intervertebral neural
foramina and moderate canal stenosis.
In May 2003, a private examiner diagnosed the Veteran with
sciatica. Notably, the associated progress notes are not
legible.
In October 2003, the Veteran underwent an electromyography
and nerve conduction velocity (EMG/NCV) study at VA due to
complaint of an exacerbation of low back pain with pain in
the right gluteal area which radiated to the right lower
extremity, which was suggestive of sciatic pain versus right
L5-S1 radiculopathy. The abnormal study revealed evidence
compatible with a right L5-S1 radiculopathy. A magnetic
resonance imaging (MRI) scan showed L4-L5 mild posterior
spondylosis with associated small central HNPs and
degenerative disc disease, L3-L4 mild posterior spondylosis
with associated bulging disc and degenerative disc disease,
and diffuse chronic degenerative joint disease (DJD) changes.
The thoracic spine demonstrated spondylosis with disc disease
changes at the T11-T12 level.
The Veteran underwent an additional VA C&P examination in
December 2003. At the time of the examination, the Veteran
described a strong, sharp, severe and constant low back pain
with right lower extremity radiation which increased with
coughing, bending, sitting and lifting objects. He reported
numbness of the right lower extremity and calf, but denied
fecal or urinary incontinence. He had obtained partial
relief with an exercise program and medicine. At times, the
Veteran had more limitation of motion or functional
impairment than usual during flare-ups. He described
occasional loss of balance, but no recent falls. He
described a need for assistance with dressing and bathing his
lower extremities.
Upon physical examination, the examiner noted the following
ranges of motion of the thoracolumbar spine: flexion of 26
degrees, extension of 8 degrees, lateral bending to the right
and left of 12 degrees, and rotation to the right and left of
15 degrees. There was guarding causing antalgic gait and
spasm causing flat lumbar lordosis. Manual muscle strength
was 5/5 from the L1 to S1 myotomes bilaterally. Deep tendon
reflexes were +1 Achilles and +1 patellar, bilaterally.
Straight leg raise test was painful at 30 degrees
bilaterally. The diagnosis was severe lumbar myositis and
L4-L5, L5-S1 mild posterior spondylosis with associated small
central herniated nucleus pulposus and degenerative disc
disease, L3-L4 spondylosis with associated bulging disc.
A February 2004 VA clinical record noted the Veteran's report
of low back pain with a 5-month history of right lower
extremity pain, usually when walking. He had obtained some
relief of symptoms with 14 physiotherapy treatments as well
as use of a cane and lumbosacral belt. Examination was
significant for mild right-sided limp, forward and backward
extension (FB) of 10 degrees, depressed knee jerks, and
straight leg raising (SLR) of 30 degrees bilaterally with
pain in the left posterior thigh on Lesegue.
An April 2004 VA clinical record noted the Veterans report of
"LBP on and off, sometimes better others worst."
In a June 2004 statement, the Veteran described a worsening
of his lumbosacral strain to the point where it limited all
his movements and disabled him from realizing any type of
movement, such as walking, standing, bending over, getting
up, lying down, dressing and undressing. In an August 2004
statement, the Veteran complained of an inability to work.
Applying the facts to the criteria of DC 5293, the Board
finds that the criteria for a rating greater than 40 percent
have not been met for any time during the appeal period. The
Board acknowledges that the Veteran's low back disability
results in severe limitation of motion, which forms the basis
for the 40 percent rating in effect. The findings have
included severe limitation of motion, demonstrable muscle
spasm, right L5 radiculopathy confirmed by EMG, and
exacerbations of low back pain.
However, the Veteran's IVDS symptoms are not shown to be
pronounced in degree or to be present with little
intermittent relief. Rather, the Veteran is shown to have
recurring attacks of IVDS with intermittent relief as
demonstrated by his own self-descriptions. In this respect,
the Veteran has described his low back pain exacerbations
which "comes and goes" (December 2004 VA clinical record),
that is recurrent (February 1998 Board testimony), that is
intermittent (May 2001 VA consultation), "almost gone"
(June 2001 VA clinical record), varying intensity but mostly
severe (July 2001 VA C&P examination report), and "on and
off, sometimes better others worst" (April 2004 VA clinical
record).
Simply stated, the Board, on a factual basis, finds that the
Veteran's own statements regarding the nature and extent of
this disability provides evidence against this claim.
The Board further notes that the Veteran has right L5
radiculopathy confirmed by EMG examination in October 2003.
A May 2001 VA clinical record found decreased 4/5 strength in
the right gluteus minimis and bilateral iliacus during an
exacerbation of symptoms. An SSA examination in October 1997
demonstrated gait disturbance and 4/5 motor loss of the lower
extremities. A February 2004 VA clinical record noted a mild
right-sided limp, depressed knee jerks, and positive straight
leg raising test.
However, the remainder of neurologic examination findings has
been normal. See December 1994 private rheumatology
examination, VA clinical records dated July 1997 and
September 1999, and VA C&P examination reports dated July
2001 and December 2003.
In totality, the Board finds that the Veteran's IVDS symptoms
do not meet, or more nearly approximate, the criteria for a
60 percent rating under DC 5293 for any time during the
appeal period. In this respect, the Veteran's IVDS is shown
to involve recurring attacks of IVDS with more than
intermittent relief.
Applying the facts under the Formula for Rating IVDS Based on
Incapacitating Episodes, the Board finds that the Veteran is
not entitled to a rating greater than 40 percent for any time
during the appeal period. As indicated above, the Veteran
does experience exacerbations of IVDS symptoms. However, the
record does not reflect that the Veteran has been prescribed
bed rest and treatment for a physician for incapacitating
episodes of IVDS having a total duration of at least 6 weeks
during any 12 month period, as required in Note 1 to DC 5243.
Finally, the Board finds that the Veteran is not entitled to
a rating greater than 40 percent for any time during the
appeal period when separately evaluating the chronic
orthopedic and neurologic manifestations of IVDS.
With respect to the chronic orthopedic manifestations of
IVDS, the Veteran has been assigned the maximum available
rating for motion loss under the old DC 5292. No reasonable
argument can be made that the Veteran's lumbar spine
manifests ankylosis as all clinical evaluations of record
demonstrate active motion of the lumbar spine. Thus, a
higher rating is not warranted under the old or new criteria
based upon ankylosis.
With respect to the chronic neurologic manifestations of
IVDS, the record does reflect that the Veteran was diagnosed
with right lower extremity radiculopathy in October 2003.
The Veteran describes a chronic right lower extremity pain,
and has demonstrated some instances of slight muscle strength
loss in the right lower extremity. However, the remaining
examinations demonstrate no sensory or motor deficit of the
right lower extremity at all. There is no muscle atrophy,
trophic changes, or chronic sensory or reflex disturbances.
Overall, in the absence of significant sensory or motor
deficits, the Board finds that a separate compensable rating
for the Veteran's right lower radiculopathy is not warranted.
The Veteran has alleged intermittent pain symptoms of the
left lower extremity, but no neurologic impairment of this
extremity has been found. Thus, there is also no basis for a
separate compensable rating for neurologic disability of the
left lower extremity.
In so deciding, the Board has considered the Veteran's report
of low back pain, right leg pain and exacerbations of
disability credible and consistent with the evidentiary
record. Clearly, he is competent to describe such
symptomatology. However, the Veteran's descriptions
regarding the severity, frequency and duration of symptoms
are somewhat vague and inconsistent. Notably, the Veteran
has many orthopedic complaints and holds diagnoses such as
somatization disorder and neurotic musculoskeletal disorder
which reduces the overall reliability of his complaints.
Regarding the overall severity of his lumbar spine
disability, as manifested orthopedically and neurologically,
the Board places greater probative value to the findings of
the various medical examiners, who have greater expertise in
evaluating such matters than the Veteran himself. The
preponderance of the persuasive lay and medical evidence is
against this claim. 38 U.S.C.A. § 5107(b).
Otitis externa and otomycosis
The Veteran also contends that his service-connected otitis
externa and otomycosis is more disabling than currently
evaluated. A June 1995 RO rating decision rated the
Veteran's ear disorder as noncompensably disabling pursuant
to 38 C.F.R. § 4.87a, DC 6201 (1994), which provided that
otitis media, catarrhal, chronic should be evaluated as
hearing impairment. At the time of the June 1995 RO rating,
there were no specific diagnostic codes to rate otitis
externa and the RO rated the veteran under DC 6201 by
analogy.
Effective June 10, 1999, the rating criteria applicable to
diseases of the ear under were amended by VA. 64 Fed. Reg.
25200-01 (May 11, 1999). This amendment added a specific
diagnostic code for chronic otitis externa. Under the new DC
6210, disease of the auditory canal with swelling, dryness
and scaliness, or a serous discharge, and itching requiring
frequent and prolonged treatment warrants a 10 percent
rating. The prior version of DC 6210, pertaining to disease
of the auditory canal, contained the same criteria for the
current DC 6210. The Board will apply both DCs to the facts
of this case, including rating by analogy to the old version
of DC 6210 effective to the date of claim.
Under both the old and new criteria, the basis for evaluating
defective hearing is the impairment of auditory acuity as
measured by puretone threshold averages, referred to as
average puretone decibel loss prior to June 1999, within the
range of 1000 to 4000 Hertz and speech discrimination using
the Maryland CNC word recognition test. 38 C.F.R. § 4.85
(1994-2009). See generally 52 Fed. Reg. 44117-44122 (Nov.
18, 1987 and 52 Fed. Reg. 46439 (Dec. 7, 1987). Puretone
threshold averages are derived by dividing the sum of the
puretone thresholds at 1000, 2000, 3000 and 4000 Hertz by
four. Id. The puretone threshold averages and the Maryland
CNC test scores are given a numeric designation which are
then used to determine the current level of disability based
upon a pre-designated schedule. See Tables VI and VII in
38 C.F.R. §§ 4.87 (1994) and 4.85 (2009).
Under these criteria, the assignment of a disability rating
is a "mechanical" process of comparing the audiometric
evaluation to the numeric designations in the rating
schedule. See Lendenmann v. Principi, 3 Vet. App. 345, 349
(1993).
The amendments effective June 10, 1999 added a provision to
address exceptional patterns of hearing loss under 38 C.F.R.
§ 4.86. The exceptional patterns addressed in this section
are present when the puretone threshold at 1000, 2000, 3000
and 4000 Hz is 55 decibels or more, or when the puretone
threshold is 30 decibels or less at 1000 Hz, and 70 decibels
or more at 2000 Hz.
With respect to chronic otitis externa, the Veteran's initial
VA C&P examination in February 1977 diagnosed mild otitis
externa and otomycosis. An April 1977 RO rating decision
granted service connection for otitis externa and otomycosis,
and assigned an initial noncompensable rating.
The Veteran filed his claim for an increased rating for
otitis externa and otomycosis in February 1994. In pertinent
part, his VA clinical records reflected treatment for
external otitis of the left ear in October 1993. VA C&P ear-
disease examination in September 1994 reflected the Veteran's
report of pain and discharge in his left ear. However,
examination found no abnormal ear, nose and throat (ENT)
findings. The external canal was normal.
Thereafter, the Veteran's reflect instances of treatment for
left ear otitis in February 1996 and April 1996. A VA C&P
examination in April 1998 found normal clinical findings for
the ears.
The record next reflects the Veteran's treatment for otitis
externa in May 1999. An April 2002 VA C&P ear disease
examination report noted the Veteran's complaint of an
earache with secretions, mainly on the left side. He also
complained of itching of the left ear as well as headaches.
The examiner reported a normal auricle, external canal,
tympanic membrane, tympanum, and mastoids. There was no
evidence of cerumen and no evidence of active disease at the
present time in the middle, external, or any other part of
the ear. The diagnosis was normal ear examination with no
evidence of otitis externa or media and no otomycosis
observed during the examination.
The Veteran's private medical records from Dr. M.A.R.S. (to
the extent that such records are legible) note normal ENT
findings in February 2002, March 2002, April 2002, June 2002,
September 2002, January 2003, May 2003, September 2003,
November 2004, April 2005, October 2005, January 2006,
September 2006 and September 2007.
Overall, the private and VA clinical records reflect the
Veteran's brief treatment for otitis externa on 4 separate
occasions since October 1993. None of these episodes
required prolonged treatment, but rather required brief
prescriptions of Cortisporin. The interval examinations
reflected normal findings for the left ear. The Veteran has
reported "recurrent" left ear infections, but has not
described the actual number of occurrences. The Veteran's
allegations of recurrent left ear infections, and entitlement
to an increased rating, are greatly outweighed by the medical
evidence of record which reflects that the Veteran does not
manifest frequent episodes of otitis media requiring
prolonged treatment.
With respect to hearing loss, an October 1994 VA C&P
audiology examination noted the Veteran report of hearing
loss, vertigo and tinnitus by 6 years. Audiometric testing
yielded test results of pure tone thresholds in the right ear
at 1000, 2000, 3000, and 4000 Hertz of 15, 15, 15, and 35
decibels, respectively, for an average of 20 decibels. Pure
tone thresholds measured in the left ear at 1000, 2000, 3000,
and 4000 Hertz were 15, 15, 15, and 16 decibels,
respectively, with an average of 15 decibels. Speech
discrimination scores were reported as 96 percent in the
right ear and 92 percent in the left ear.
The October 1994 VA audiologist diagnosed unilateral hearing
loss. However, it was noted that language difficulties made
use of both pure tone average and speech discrimination
inappropriate.
Application of 38 C.F.R. § 4.85 Table VI to the October 1994
measurements results in assignment of Roman Numeral I to the
left ear and Roman Numeral I to the right ear, for the
purpose of determining a disability rating. A
noncompensable, or 0 percent, rating is derived from Table
VII.
Notably, the VA C&P examiner commented that language
difficulties made use of both pure tone average and speech
discrimination inappropriate. Under 38 C.F.R. § 4.85(c) then
in effect, the Board will apply Table VIa which evaluated
hearing loss solely upon average puretone decibel loss.
However, the results do not change in this case as the right
and left ears still retain Roman Numeral I designations,
which results in a noncompensable, or 0 percent, rating under
Table VII.
The Veteran underwent a VA C&P audiology examination in April
2002. Audiometric testing yielded test results of pure tone
thresholds in the right ear at 1000, 2000, 3000, and 4000
Hertz of 10, 10, 15, and 30 decibels, respectively, for an
average of 16 decibels. Pure tone thresholds measured in the
left ear at 1000, 2000, 3000, and 4000 Hertz were 10, 20, 20,
and 15 decibels, respectively, with an average of 16
decibels. Speech discrimination scores were reported as 96
percent in both ears.
Application of 38 C.F.R. § 4.85 Table VI to the April 2002
measurements results in assignment of Roman Numeral I to the
left ear and Roman Numeral I to the right ear, for the
purpose of determining a disability rating. A
noncompensable, or 0 percent, rating is derived from Table
VII.
Notably, the April 2002 VA C&P examiner did not find any
language difficulties which made use of both pure tone
average and speech discrimination inappropriate. Even
assuming that applying a rating based purely on puretone
threshold averages would be appropriate, the results do not
change in this case as the right and left ears still retain
Roman Numeral I designations, which results in a
noncompensable, or 0 percent, rating, under Table VII. See
38 C.F.R. § 4.85(c), Table VIa (in effect prior to June 10,
1999); 38 C.F.R. § 38 C.F.R. § 4.85(c), Table VIA (in effect
since June 10, 1999).
As indicated above, the amendments effective June 10, 1999
added alternative evaluations for exceptional patterns of
hearing. However, the Veteran's puretone thresholds are less
than 55 decibels in the four specified frequencies. As such,
these provisions do not apply to the case.
An October 1997 private examination report noted a finding of
left partial deafness, but no audiometric findings were
provided. Notably, this assessment was previously provided
in October 1994 but the audiometric findings did not reveal
compensable hearing loss.
In conclusion, the results from the audiological testing do
not provide for assigning a compensable evaluation for otitis
externa based upon hearing loss for any time during the
appeal period. The Board has considered the Veteran's
descriptions of his claimed hearing loss disability as well
as the medical descriptions of partial left ear
deafness/unilateral left ear hearing loss. However, the most
probative evidence concerning the level of severity consists
of the audiometric testing results of record. See
Lendenmann, 3 Vet. App. at 349. The preponderance of the
evidence is against the claim. The benefit of the doubt
rule, therefore, is not for application. Ortiz v. Principi,
274 F. 3d. 1361, 1365 (Fed. Cir. 2001). Simply stated, the
Board must find that the results of the testing provide
highly probative evidence against this claim, outweighing the
Veteran's statements.
Extraschedular consideration
The Board has also considered whether referral for
extraschedular consideration is warranted in this case. To
accord justice in an exceptional case where the scheduler
standards are found to be inadequate, the RO is authorized to
refer the case to the Chief Benefits Director or the
Director, Compensation and Pension Service for assignment of
an extraschedular evaluation commensurate with the average
earning capacity impairment. 38 C.F.R. § 3.321(b)(1).
The criterion for such an award is a finding that the case
presents an exceptional or unusual disability picture with
such related factors as marked interference with employment
or frequent periods of hospitalization as to render
impractical application of regular schedular standards. Id.
The Court has held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) in the first instance; however, the Board is
not precluded from raising this question, and in fact is
obligated to liberally read all documents and oral testimony
of record and identify all potential theories of entitlement
to a benefit under the law and regulations. Floyd v. Brown,
9 Vet. App. 88 (1996). The Court further held that the Board
must address referral under 38 C.F.R. §3.321(b)(1) only where
circumstances are presented which the Director of VA's
Compensation and Pension Service might consider exceptional
or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
In Thun v. Peake, 22 Vet. App. 111 (2008), the Court
clarified the analytical steps necessary to determine whether
referral for extraschedular consideration is warranted.
Either the RO or the Board must first determine whether the
schedular rating criteria reasonably describe the veteran's
disability level and symptomatology. Id. at 115. If the
schedular rating criteria do reasonably describe the
veteran's disability level and symptomatology, the assigned
schedular evaluation is adequate, referral for extraschedular
consideration is not required, and the analysis stops.
If the RO or the Board finds that the schedular evaluation
does not contemplate the veteran's level of disability and
symptomatology, then either the RO or the Board must
determine whether the veteran's exceptional disability
picture includes other related factors such as marked
interference with employment and frequent periods of
hospitalization. Id. at 116. If this is the case, then the
RO or the Board must refer the matter to the Under Secretary
for Benefits or the Director of the Compensation and Pension
Service for the third step of the analysis, determining
whether justice requires assignment of an extraschedular
rating. Id.
The Veteran complains of left ear hearing loss and recurrent
episodes of otitis media. He also reports severe low back
pain which radiates into his right lower extremity. He
argues that his disabilities render him unemployable.
With respect to his otitis externa, the Veteran's disability
has been evaluated under two separate alternate criteria,
based upon the frequency and duration of otitis externa
symptoms (DC's 6201 and 6210) and potential hearing loss (DC
6100). Higher schedular ratings are available, and the
Veteran does not meet or more nearly approximate the criteria
for a higher rating. With respect to hearing loss,
consideration has also been given to rating based solely on
puretone threshold averages due to possible language
difficulties as well as provisions evaluating exceptional
patterns of hearing loss. Thus, the Board is of the opinion
that the Rating Schedule measures and contemplates these
aspects of his otitis externa disability.
With respect to the lumbar spine claim, the Veteran's
disability has been evaluated under multiple different
diagnostic codes applicable to the appeal period, including
specific consideration for the orthopedic and neurologic
manifestations of IVDS and frequency and duration of
incapacitating IVDS episodes. Thus, the Board is of the
opinion that the Rating Schedule measures and contemplates
these aspects of his lumbar spine disability.
Accordingly, the Board finds that referral of this case for
extraschedular consideration is not warranted.
Psychophysiological musculoskeletal disorder
The Board has an obligation to make an independent
determination of its jurisdiction regardless of findings or
actions by the RO. Rowell v. Principi, 4 Vet. App. 9, 15
(1993); Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83
F.3d 1380 (Fed. Cir. 1996). It is well established judicial
doctrine that any statutory tribunal must ensure that it has
jurisdiction over each issue before adjudicating the merits
and that, once apparent, a potential jurisdictional defect
may be raised by the court, tribunal or any party, sua
sponte, at any stage in the proceedings. Barnett, 83 F.3d at
1383.
A review of the record demonstrates that an April 1977 RO
rating decision denied a claim of entitlement to
psychophysiological musculoskeletal disorder, claimed as
tension headaches, on the basis that such disability was not
incurred in or aggravated by service. The Veteran was
provided notice of this decision and his appellate rights in
May 1977, but did not initiate an appeal. The April 1977
rating decision, therefore, is final. 38 U.S.C.A. § 7105(c)
(West 2002); 38 C.F.R. § 20.300, 20.302, 20.1103 (2009).
The Veteran filed his application to reopen the claim in
February 1996, and this claim is subject to reopening under
the new and material standard in effect prior to August 29,
2001. See 66 Fed. Reg. 45620 (Aug. 29, 2001). Under this
definition, evidence is new when it is not merely cumulative
or redundant of other evidence previously of record.
38 C.F.R. § 3.156(a) (in effect prior to August 29, 2001).
Material evidence is evidence which bears directly and
substantially upon the specific issue at hand, and which by
itself or in connection with evidence previously assembled,
is so significant that it must be considered in order to
fairly decide the merits of the claim. Id. See also Hodge
v. West, 155 F.3d 1356 (Fed. Cir. 1998).
For purposes of reopening, evidence is presumed credible
unless it is inherently false or untrue. Duran v. Brown, 7
Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App.
510, 513 (1992). The evidence relied upon in reopening the
claim must be both new and material. Smith v. West, 12 Vet.
App. 312 (1999).
Evidence of record before the RO in April 1977 included the
Veteran's STRs for his periods of active service from
November 1973 to November 1975, and from March 1976 to
November 1976. A February 1974 STR reflected the Veteran's
report of headaches in conjunction with symptoms of chest and
back pain, coughing, vomiting, stomach cramps and sore
throat. In February 1975, the Veteran complained of
headaches in conjunction with an upper respiratory infection
(URI). On his separation examination in October 1975, the
Veteran reported being in good health. Physical examination
indicated a normal clinical evaluation of his neurologic
system.
On his March 1976 induction examination, the Veteran denied a
history of frequent or severe headache. Physical examination
indicated a normal clinical evaluation of his neurologic
system. An April 1976 STR reflected the Veteran's treatment
for recurrent frontal headaches. At that time, the Veteran
described having frontal headaches one day per month for the
last year. On his September 1976 separation examination, the
Veteran reported a history of frequent headaches. However,
physical examination indicated a normal clinical evaluation
of his neurologic system, providing evidence against this
claim.
On his initial VA C&P examination in February 1977, the
Veteran reported a history of insomnia, tension headaches,
restlessness and being easily annoyed by his family. He left
the house when getting into arguments with his wife.
Psychiatric examination indicated a diagnosis of
psychophysiologic musculoskeletal disorder (tension
headaches).
Evidence added to the record since the RO's April 1977 rating
decision includes a March 1977 VA mental health consultation
which noted that the Veteran was functioning within the
psychoneurotic level with anxiety and depressive features.
No headaches were reported. The subsequent medical evidence
includes private medical records, VA treatment records,
treatment records from the National Guard, and STRs for a
third period of active service. The private and VA clinical
records reflect episodes of headache complaints as well as
diagnoses such as somatization disorder, neurotic
musculoskeletal disorder and other acquired psychiatric
disorders (which will be addressed in the decision addressing
service connection for an acquired psychiatric disorder).
Notably, the Veteran had a third period of active service
from June 1992 to March 1994. The Veteran denied a history
of frequent or severe headaches on his July 1992 entrance
examination, and no neurologic disability was found,
providing more evidence against this claim. He reported
symptoms of headache, sore throat and general malaise in
October 1993, which led to an assessment of viral syndrome.
A psychophysiologic musculoskeletal disorder and/or tension
headaches was not diagnosed during this period of service.
Overall, none of the evidence added to the record since the
RO's April 1977 rating decision contains competent evidence
which suggests that the Veteran manifests psychophysiologic
musculoskeletal disorder and/or tension headaches which was
caused or aggravated during a period of active service, or
ACDUTRA service, and/or related to service-connected
disability. To the contrary, an April 2002 VA C&P examiner
provided opinion that the Veteran's headaches were not
related to the service-connected back disability.
The Veteran himself has added no additional information which
is not cumulative or redundant of evidence previously
considered by the RO. Additionally, his personal belief of a
nexus to service is insufficient to warrant a reopening of
the claim. See Moray v. Brown, 5 Vet. App. 211 (1993).
Accordingly, the Board finds that no new and material
evidence within the meaning of 38 C.F.R. § 3.156(a) has been
received since the RO's April 1977 rating decision. The
appeal, therefore, is denied.
Acquired psychiatric disorder
The Veteran primarily contends that he manifests a depressive
disorder as secondary to his service-connected lumbar spine
disability. He does not specifically contend that his
depression was present in service or is otherwise related to
service.
The Board initially observes that the Veteran holds multiple
diagnoses of psychiatric disorders. The Board will consider
all psychiatric diagnoses of record, see Clemons v. Shinseki,
23 Vet. App. 1 (2009), and consider an implicitly raised
direct service connection claim theory. See Bingham v.
Principi, 421 F.3d 1346, 1349 (Fed. Cir. 2005).
The Veteran had his first period of active service from
November 1973 to November 1975. There is no lay or medical
evidence of psychiatric complaints during this period of
active service. On his separation examination in October
1975, the Veteran reported being in good health. Physical
examination indicated a normal clinical evaluation of his
psychiatric status.
The Veteran had his second period of active service from
March 1976 to November 1976. These records are only
significant for his report of nervous trouble and frequent
trouble sleeping on his September 1976 separation
examination. At that time, examination indicated a normal
clinical evaluation of his psychiatric status.
On his initial VA C&P examination in February 1977, the
Veteran reported a history of insomnia, tension headaches,
restlessness and being easily annoyed by his family. He left
the house when getting into arguments with his wife.
Psychiatric examination indicated a diagnosis of
psychophysiologic musculoskeletal disorder (tension
headaches).
Notably, the Veteran's claim of service connection for
psychophysiologic musculoskeletal disorder (tension
headaches) was denied by a final RO rating decision dated
April 1977. This specific claim has been addressed by the
Board in a prior section of this decision.
A March 1977 VA mental health consultation noted that the
Veteran was functioning within the psychoneurotic level with
anxiety and depressive features.
On National Guard quadrennial examinations dated March 1979,
May 1983, October 1987 and May 1991, the Veteran denied any
psychiatric complaints and examinations indicated a normal
clinical psychiatric status, providing evidence against this
own claim.
The Veteran had his last period of active service from June
1992 to March 1994. On his July 1992 enlistment examination,
the Veteran denied any psychiatric complaints and examination
indicated a normal clinical psychiatric status.
In pertinent part, the Veteran requested to consult a VA
psychiatrist in December 1995. He reported being service-
connected for skeletal disability with a prior history of
psychiatric treatment "years ago." He reported being
referred for a psychiatric consultation due to a decrease in
sexual interest, insomnia, feelings of worthlessness and
sadness "for the last year." At that time, he was
diagnosed with major depression.
On a March 1996 periodic National Guard examination, the
Veteran denied psychiatric complaints and examination
indicated a normal psychiatric status.
Thereafter, the record reflects that the Veteran was
diagnosed with major depressive disorder with psychotic
features in April 1996. The psychotic features involved the
Veteran seeing figures of people at night and hearing voices
he couldn't understand. In August 1996, the Veteran reported
being angry about losing his job secondary to "arthritis."
Thereafter, the Veteran was diagnosed with somatization
disorder, neurotic skeletal disorder, mood disorder
associated with medical condition (arthritis and skeletal
pain), and mood disorder secondary to medical condition which
noted the Veteran's need for knee surgery.
In July 1997, a VA examiner noted the Veteran to have
diagnoses of right medial meniscus tear, osteoarthritis (OA)
by history (hx) and hypertension (HTN) by history. It was
noted that the Veteran's depression was contributing to his
diffuse pains.
In conjunction with the diagnosis of major depressive
disorder with psychotic features in September 1997, a VA
examiner noted the Veteran to manifest disabilities of right
knee meniscal tear with effusion, arterial hypertension, non-
insulin dependent diabetes mellitus and poor vision.
A private examination report dated October 1997 reflected the
Veteran's history of depression since 1996.
The Veteran underwent a VA C&P mental disorders examination
in April 1998. At that time, the Veteran indicated not
knowing what he was claiming other than his life had been
destroyed. He had been unemployed since 1994, and otherwise
did not volunteer information. The examiner diagnosed
psychological factors affecting physical condition by the
record.
In June 2000, a VA clinician indicated that the Veteran
manifested a mood disorder secondary to low back pain.
The Veteran was afforded a VA examination in April 2002. The
examiner was specifically asked to specify whether the
Veteran suffers from depression, and if so, whether it is due
to his service-connected back disorder. During the
examination, the examiner elicited a history from the Veteran
of his psychiatric problems and his service-connected back
disorder. The Veteran reported that his back disorder limits
and him and does not allow him to be the same person that he
was.
Based upon this examination, the examiner diagnosed the
Veteran with depressive disorder, not otherwise specified.
Furthermore, upon review of the claims folder the examiner
concluded that the Veteran's neuropsychiatric condition was
not etiologically related to his service-connected
disabilities, nor was it the result from a progression of his
service-connected disabilities. The examiner stated that the
Veteran's diagnosed psychiatric disorder is an independent
entity.
Given the evidence of record, the Board finds that service
connection for depression on a direct basis or as secondary
to service-connected disability is not warranted.
With respect to a direct basis, the Veteran's psychiatric
evaluations during his 3 periods of active service indicate
normal clinical evaluations, which provide strong probative
evidence against the claims.
The Veteran's National Guard quadrennial examinations, dated
March 1979, May 1983, October 1987 and May 1991, also provide
lay and medical evidence that the Veteran did not manifest a
chronic psychiatric disability related to the first periods
of active service.
Rather, the record first reflects a diagnosis of major
depression in December 1995, which is more than 11/2 years
after his discharge from his last period of active service.
There is no competent evidence suggesting that his
psychiatric problems are in any way related to this period of
active service.
The Board acknowledges a diagnosis of major depression with
psychotic features in April 1996. There is no lay or medical
evidence indicating that psychosis manifested within a
compensable degree within one year of discharge from active
service in March 1994. In March 1977, a VA examiner
indicated that the Veteran was functioning within the
psychoneurotic level with anxiety and depressive features.
However, a psychoneurosis is not the equivalent of a
psychosis. Cf. DC's 9410 (listing a neurosis as among the
anxiety disorders) and DCs 9201-9211 (listing the various
psychotic disorders which do not include a neurosis). As
such, the presumptive provisions of 38 C.F.R. §§ 3.307 and
3.309 do not apply.
The Board also acknowledges the Veteran's period of ACDUTRA
in June 1996. A diagnosis of major depression with psychotic
features was established approximately 2 months prior to this
service, and there is no lay or medical evidence indicating a
worsening of this disability for this short time period.
Even assuming that the Veteran could establish himself as a
"veteran' for this period for purposes of applying
presumptive provisions, the record establishes that the
Veteran's major depression with psychotic features clearly
and unmistakably existed prior to this ACDUTRA and clearly
and unmistakably was not aggravated during this short period
of ACDUTRA. The Board finds that the post-service medical
records provide highly probative evidence against this claim,
for reasons cited above. The Veteran's own statements, at
some points in the record, clearly provide evidence against
his current claims before the Board.
With respect to a secondary basis, the Veteran's VA clinical
records reflect general impressions of a mood disorder
secondary to medical conditions. Many of these records refer
to numerous nonservice-connected disabilities in conjunction
with the diagnosis while one clinical record in June 2000
specifically references the mood disorder as secondary to low
back pain.
The April 2002 VA examiner specifically opined that the
Veteran's depression is not related to his service-connected
disorders. This opinion was based upon review of the
extensive record, to include the Veteran's mental hygiene
records and evaluations of record.
Overall, the Board finds that the April 2002 VA examiner's
opinion holds the greatest probative value in this case, as
it is based upon an extensive interview of the Veteran and
the medical evidence in the claims folder. The June 2000 VA
appears to report that the Veteran has a mood disorder
related to low back pain, but no reasoning or analysis is
provided to support that conclusion. The overwhelming
additional clinical records refer to many non-service
connected factors as contributing to the Veteran's
psychiatric impairment. Overall, the Board finds that the
weight of the medical evidence is against a finding that the
Veteran's psychiatric impairment is caused or aggravated by
his service-connected disabilities.
The Board acknowledges the Veteran's belief that his
psychiatric impairment is either related to service and/or
service-connected disability. However, his personal opinion
as a lay person not trained in medicine is not the type of
competent evidence needed to establish a link between the
psychiatric impairment and its relationship to service and/or
service-connected disability. See Bostain v. West, 11 Vet.
App. 124, 127 (1998), citing Espiritu, 2 Vet. App. at 492.
See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a
layperson is generally not capable of opining on matters
requiring medical knowledge").
The Veteran's statements to military examiners in March 1979,
May 1983, October 1987, May 1991 and July 1992 weigh heavily
against a finding of continuity of symptomatology for the
first two periods of active service. The Veteran's own
statements do not directly report the onset of symptoms
during his third period of active service. In any event, any
statements of continuity of symptomatology since any period
of active service are greatly outweighed by the actual
treatment records, which do not reflect the onset of chronic
psychiatric symptoms during any period of active service.
To the extent that his personal opinion holds any probative
value, it is greatly outweighed by the service and post
service medical records which, as a whole, provide highly
probative evidence against his claim. As the preponderance
of the evidence is against the claim, the benefit of the
doubt rule is not for application. 38 U.S.C.A. § 5107(b).
The Duty to Notify and the Duty to Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).
The claims were initially adjudicated between August 1998 and
May 2000, which predates the passage of the VCAA. As such,
the requirement for a VCAA compliant notice predating the
initial unfavorable decision on the claims by the agency of
original jurisdiction (AOJ) is an impossibility in this case.
See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
RO letters dated June 2001, March 2002, January 2006,
February 2006, May 2008, and July 2008 advised the Veteran of
the types of evidence and/or information deemed necessary to
substantiate his claims as well as the relative duties upon
the Veteran and VA in developing his claims. Importantly, a
February 2006 letter advised the Veteran of the types of
evidence required to both reopen and substantiate his
psychophysiological musculoskeletal claim on appeal. See
Kent v. Nicholson, 20 Vet. App. 1 (2006). A May 2008 RO
letter advised the Veteran as to how VA determines disability
ratings and effective dates of awards. See Dingess v.
Nicholson, 19 Vet. App. 473 (2006). The timing deficiency in
providing content compliant VCAA notice was cured with
readjudication of the claims in a March 2009 supplemental
statement of the case. See Mayfield, 444 F.3d 1328 (Fed.
Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376
(2006).
VA has a duty to assist the Veteran in the development of the
claims. This duty includes assisting the Veteran in the
procurement of STRs and pertinent treatment records and
providing an examination when necessary. 38 U.S.C.A.
§ 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the Veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained VA clinical
records, all available STRs covering the three separate
periods of active service, National Guard records, private
records and SSA records. There are no outstanding requests
to obtain any additional information which the Veteran has
identified as relevant to his claims on appeal.
The Veteran has been afforded VA medical examination to
evaluate his service-connected lumbar and otitis
disabilities. The findings from these examination reports
are supplemented by extensive private and VA clinical
records. The VA examinations conducted in December 2003
contain all findings necessary to decide the claims. The
Board acknowledges the Veteran's continuing report of
increased severity of symptomatology throughout the appeal
which has not been substantiated by the clinical findings.
The Board finds no persuasive lay or medical evidence which
suggests an increased severity of symptoms to the extent that
higher ratings may be assigned since the last examinations
conducted. As such, there is no duty to provide further
medical examination on these claims. See VAOPGCPREC 11-95
(Apr. 7, 1995).
The Veteran was afforded a VA medical examination in April
2002 to determine the nature and etiology of his psychiatric
complaints. The Veteran had only alleged a secondary service
connection theory, which was the only theory addressed by the
examiner. This examination report is adequate for rating
purposes as the examiner provided a clear diagnosis based
upon review of the entire evidentiary record. The Board has
reviewed the claim on a direct basis to ensure thoroughness.
On review of the record, the Board finds that the credible
lay and medical evidence does not show chronic psychiatric
disability as having been incurred in, or aggravated by, any
period of eligible military service. The credible lay and
medical evidence also does not establish symptoms of
disability having first manifested in service and having been
recurrent and/or persistent thereafter. Finally, the Board
finds no credible evidence that some type of inservice
"event" is responsible for the Veteran's psychiatric
complaints. As such, there is no duty to obtain further
medical opinion on this claim.
As the application to reopen a claim for psychophysiological
musculoskeletal disorder is denied, VA has no duty to obtain
medical opinion on this claim. 38 C.F.R.
§ 3.159(c)(4)(C)(iii).
Overall, based on the evidence, there is no basis to find
that a VA examination would provide a basis to grant any of
the claims before the Board at this time.
Finally, the Board notes that its actions have fully complied
with the remand directives from the Court, and that the RO
has complied with the Board's remand directives. In this
respect, the claims folder now possesses SSA records and STRs
for the Veteran's third period of active service.
Additionally, the Veteran has been provided a content
compliant Kent notice on the application to reopen, and a
specialized notice letter on the claims seeking a greater
rate of compensation for the lumbar spine and left ear
disorders.
Significantly, the Veteran and his representative in this
case have not identified, and the record does not otherwise
indicate, any additional existing evidence that is necessary
for a fair adjudication of the claims that has not been
obtained. Hence, no further notice or assistance to the
Veteran is required to fulfill VA's duty to assist the
appellant in the development of the claims.
ORDER
A disability rating greater than 40 percent for L4-L5 and L5-
S1 spondylosis with associated small central herniated
nucleus pulposus with degenerative disc disease and lumbar
myositis is denied.
A compensable disability rating for otitis externa and
otomycosis is denied.
New and material evidence not having been received, the claim
for service connection for psychophysiologic musculoskeletal
disorder claimed as tension headaches is not reopened; the
appeal is denied.
Service connection for depression is denied.
REMAND
The RO has denied the Veteran's claim of service connection
for hypertension on the basis that new and material evidence
has not been submitted to reopen a prior final decision. See
SSOC dated March 2009.
As indicated above, the Board has determined that the new and
material standard no longer applies to this claim based on
the most recent decisions of the Court.
In Hickson v. Shinseki, No. 07-1311 (U.S. Vet. App. Mar. 31,
2010), the Court indicated that, when a Board reopens a claim
after the RO has denied reopening the same claim, the matter
must generally be returned to the RO for consideration of the
merits. As the RO has not evaluated the credibility of the
evidence of record, the Board finds that it would be
potentially prejudicial to adjudicate the claim on the merits
at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Similarly, the RO has not considered the Veteran's claim of
entitlement to TDIU. This claim, therefore, is also remanded
to avoid any potential prejudice accruing to the Veteran.
Accordingly, the case is REMANDED for the following action:
1. Provide the Veteran notice consistent with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)
regarding the claim of entitlement to TDIU.
2. After completion of any necessary
notice, assistance (to include obtaining
pertinent VA treatment report), and other
development which may be deemed necessary,
the RO should adjudicate the Veteran's
claims of entitlement to service
connection for hypertension and
entitlement to TDIU. If any benefit
sought on appeal remains denied, the RO
should furnish the Veteran and his
representative an SSOC and the appropriate
period of time to respond.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim
must be afforded expeditious treatment. The law requires
that all claims that are remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See 38 U.S.C.A. §§
5109B, 7112 (West Supp. 2009).
______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs